Gujarat High Court
Deputy Executive Engineer And Anr. vs Surabhai Motibhai Chavda on 15 February, 2008
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard learned advocate Mr. Pradeep Patel appearing on behalf of petitioners.
2. This group of petitions are filed by petitioners on 13th September 2007 vide Special Civil Application (Stamp) No. 23614 of 2007 to Special Civil Application (Stamp) No. 23624 of 2007. These matters are remained in objection. Ultimately, on 2nd February 2008, after removing the objections, matters are registered as regular special civil application.
3. In the present petitions, petitioners have challenged ex-parte award passed by Labour Court, Nadiad Exh.29 in Reference No. 32 of 1998 (Old Reference No. 272 of 1984) dated 21st December 1998. The Labour Court, Nadiad had set aside the termination order in favour of 11 workmen those who are respondents and granted reinstatement with continuity of service with full backwages of interim period. The respondents raised industrial dispute against their termination dated 21st December 1983 which was referred for adjudication on 30th July 1984 to Labour Court, Nadiad. The Labour Court, Nadiad has passed an ex-parte award prior to this in Reference No. 273 of 1984 vide Exh.11 on 28th May 1991. Thereafter, application No. 49 of 1991 was filed by petitioners for setting aside ex-parte award which was allowed by Labour Court after hearing both the sides on 23rd December 1997 vide Exh.9 and given reasonable opportunity of hearing to the petitioners and directed to decide the reference on merits. Thereafter, matter was adjourned to 20th March 1998. But, after restoring the reference while setting aside the ex-parte award, again, petitioner remained absent throughout and not filed reply against the statement of claim filed by respondent. Vide Exh.9 - Surabhai Mothibhai Chavda, vide Exh.14 - Harkhabhai Lalabhai Vankar, vide Exh.15 - Dhanabhai Lalabhai Vankar, vide Exh.16 - Bhupatbhai Motibhai Chavda, vide Exh.17 - Mohbatsinh Fatehsinh Rathod, vide Exh.18 - Ramabhai Khanabhai Vankar, vide Exh.19 - Lallubhai Juhabhai Dabhi, vide Exh.20 - Udabhai Juhabhai Dabhi, vide Exh.21 - Nanabhai Bajibhai Dabhi, vide Exh.22 - Nanjibhai Vaghjibhai Rathod, vide Exh.23 - Chimanbhai Pashabhai Vankar were filed affidavit before Labour Court supporting the facts narrated in statement of claim and Shri Surabhai Motibhai Chavda was examined in support of statement of claim. The present petitioner was not remained present to cross-examine the aforesaid workmen though notices were served to the petitioners. Thereafter, vide Exh.25, the oral evidence of the workmen was closed and matter was kept for oral evidence of petitioner. Thereafter, again, an intimation was sent vide Exh.26 to the petitioner to remain present before the Labour Court, even though, petitioner remained absent. Therefore, ultimately, Labour Court has heard the matter and passed ex-parte award against the petitioner.
4. Initially, Labour Court had issued notice to petitioner, but, no one remained present on behalf of petitioner. No advocate was engaged by petitioner in the proceedings pending before the Labour Court. These workmen were working and remained in service since number of years and completed continue service of 240 days and their services were terminated by violating Section 25F, 25G and 25H of Industrial Disputes Act, 1947. Vide Exh.5, notice issued by Labour Court which was served to petitioner, thereafter, not remained present, therefore, Labour Court had issued, again, a second notice vide Exh.8 to the petitioner, even though, petitioner remained absent. Therefore, ex-parte award was passed on 28th May 1991 which was subsequently restored and after restoration also, notices were served to petitioner while giving a date of hearing on 20th March 1998, even though, petitioner remained absent and no advocate was engaged and ultimately, even on second occasion, Labour Court has passed an ex-parte award on 21st December 1998. Before that, vide Exh.26, an intimation was sent by Labour Court to the petitioner, even though, petitioner remained absent.
5. The ex-parte award dated 21st December 1998 being a second ex-parte award was not challenged by petitioner for about ten years period. The petitioner was aware about alternative remedy as, in past, it was availed, even though, petitioner has not made any application for setting aside second ex-parte award. No petition was filed for about ten years period and thereafter, receiving the notice from Labour Court of recovery application No. 47 of 2005 which was based on second ex-parte award. Thereafter, a petition was filed after a period of more than two years. The above facts are narrated which are on record just to show the lethargic approach of the petitioner to remain silent being a public officer not to take care in challenging such award where the reinstatement of 11 employees granted by Labour Court with full backwages of interim period.
6. In the present petitions, the petitioners have pointed out certain parts on merits that these 11 employees were not recruited regularly and they were not permanent employees and they have not completed 240 days continue service. They were engaged on need basis as and when work was available. Therefore, these 11 employees are not entitled for any legal rights to claim against petitioners. The merits which are narrated in the petitions are totally irrelevant, because, petitioner was not remained present before the Labour Court for two occasions and not disclosed the defence before the Labour Court. This Court is examining the matters only on the ground of delay in filing present petitions which is not satisfactorily explained by petitioner in the present petitions. The recovery application being No. 37 of 2005 to No. 48 of 2005 were filed by 11 employees before the Labour Court, Nadiad. The notice issued by Labour Court in recovery application is challenged by petitioner in the present petitions. The para 3/1 and para 3/2 are relating to merits, but, when petitioner remained absent before the Labour Court while considering the question that whether petitions are to be entertained or not, the merits are totally irrelevant. The delay explained in para 3/3 to para 3/5 and Para 4 which are quoted as under:
3.3 The petitioners most respectfully submit that the petitioner No. 1 engaged a lawyer to defend the Reference case before the Labour Court, Nadiad. The petitioners submit that the employee namely, Surabhai Motibhai gave deposition before Labour Court, on 4.4.1989 and in the absence of the representative for the petitioner No. 1, the learned Presiding Officer, Labour Court, Nadiad was pleased to allow the Reference (LCN) No. 272 of 1984 ex-parte, vide judgment and award dated 28.5.1991 whereby the petitioner No. 1 was directed to reinstate the respondent and 11 other workmen with continuity of service and full backwages. The petitioners most respectfully submit that the petitioner No. 1 moved an application being Civil Misc. Application No. 49 of 1991 for setting aside the ex-parte judgment and award dated 28.5.1991 and the same came to be allowed conditionally vide order dated 23.12.1977, and the Reference (LCN) No. 272 of 1984 was restored to files and ultimately, the reference case was numbered as Reference (LCN) No. 32 of 1998.
3.4 The petitioners most respectfully submit that all the workmen except Surabhai Motibhai and Aahji Lalabhai filed affidavit before the Labour Court, Nadiad, in support of the statement of claim, sworn on 24.9.1998. The petitioners submit that the representative of the workmen vide Ex.24 purshis declared their evidence as closed and upon an application vide Ex.28, given by the representative of the workmen, the learned Presiding Officer was pleased to pass an order declaring the evidence of the petitioners as closed. The petitioners submit that though the petitioner No. 1 engaged an advocate to defend the case, the lawyer did not take adequate care and caution to defend the Reference case on behalf of the District Panchayat and the lawyer did not filed written statement on behalf of the petitioner No. 1. The petitioners submit that the further proceedings before the Labour Court, Nadiad went ex-parte and the learned Presiding Officer, Labour Court, Nadiad was pleased to allow the reference (LCN) No. 32 of 1998, by common judgment and award dated 21.12.1998, whereby, the petitioner No. 1 was directed to reinstate the respondent and 10 other workmen with continuity of service and full backwages. A copy of the impugned judgment and award is annexed hereto and marked as ANNEXURE-B to this petition.
3.5 The petitioners most respectfully submit that the petitioners office do not have the relevant record of the presence of the workmen of the Reference of the workmen of the Reference case, as the workmen were not regularly recruited employees and were employed on purely temporary basis and the none of the employees completed 240 days of continuous service in any of the years and in fact, since the workmen were employed looking to the exigency of work neither muster rolls were maintained nor seniority list was maintained. The petitioners submit that the petitioners could not approach this Honourable Court immediately, as the office of the petitioners was not properly advised and moreover relevant papers were also missing from the office of the petitioners. The petitioners most respectfully submit that the respondent belatedly filed a recovery application before the Labour Court, Nadiad being Recovery Application No. 47 of 2005 in August, 2005 for the recovery of Rs. 694691.10 for the period upto 30.6.05. The petitioners most respectfully submit that the office of the petitioners realised the gravity and consequences of the ex-parte judgment and award dated 21.12.1998, when the petitioners received the notices issued in the recovery application and the total amount claimed by all workmen under the strength of ex-parte judgment and award dated 21.12.1998 comes around 1 crore approximately. The petitioners submit that the office of the petitioners immediately engaged lawyer to defend the Recovery Application being numbered as 37/2005 to 48/2005, before Labour Court, Nadiad and took steps to challenge the impugned ex-parte judgment and award dated 21.12.1998. The petitioners submit that the delay in approaching this Honourable Court may kindly be condoned in the interest of justice.
4. The petitioners most respectfully submit that the office of the petitioners have initiated steps to find out the employee guilty of lethargy and delay in forwarding the file to the superior officer for challenge before the appropriate forum against the ex-parte judgment and award dated 21.12.1998 and the petitioners submit that once the guilty employee is traced out, appropriate departmental proceedings shall be initiated against the same and shall be taken to recover the amount from the employee. The petitioners submit to stay the impugned judgment and award and recovery proceedings in the interest of justice and as otherwise, the public money and granted received from the Government shall have to be disbursed due to the fault of the erring officer. The petitioners submit that since the case is old, it is difficult for the petitioners to hold particular employee guilty with firmness, within a short span of time, however, steps have been initiated to trace out the erring officer.
7. In view of aforesaid averments made by petitioner which is not correct and it cannot consider to be a sufficient cause to condone the delay of about ten years. The advocate was not engaged by petitioner, because, who was not appearing on behalf of petitioner. So, in appearance, the name of advocate is not given by petitioner and no affidavit of such advocate is filed in support of prayer of condoning the delay. No affidavit of any responsible officer, who is dealing with such matter, was filed by explaining the delay of about ten years. Merely, receiving the notice from Labour Court in recovery application cannot consider to be a challenge under Article 226 of the Constitution of India. Merely, receiving the notice is not an award or order passed by Labour Court, Nadiad. The Labour Court has issued notice and calling the petitioner to remain present in recovery application. Whether petitioner has filed any appearance in recovery application or engaged any advocate in recovery application which is not clear from averments made in petitions. If the notice received from Labour Court in recovery application, then, petitioner can engage advocate to appear before Labour Court as opportunity is available which has been given by Labour Court to the petitioner. So, petition filed by petitioner challenging the notice of recovery, such kind of petition is not maintainable in law as no decision is given by Labour Court and petitioner was having opportunity to appear before the Labour Court. As per Para 4 to search an erring officer has no defence, but, petitioner has to approach immediately to Labour Court after receiving the ex-parte award from the Labour Court. The petitioner has purposefully and deliberately remained silent that award dated 21st December 1998 received by petitioner on which date and what steps have been taken thereafter and what advise received by petitioner from whom, no record has been produced by petitioner though averments are made to the effect that petitioner was not properly advised, but, by whom, no detail is given. The defence which was raised to find out the erring officer is not an explanation to condone the delay. The petitioner has given vague explanation without detail and without record which cannot fill up the gap of ten years continuously delay without taking any steps in between by the petitioner. After receiving the award dated 21st December 1998, no detail was given by petitioner as the file has been moved from which table-to-table, office-to-office and person-to-person, therefore, it is a clear case of deliberate delay which can consider to be a culpable negligence on the part of petitioner. During the ten years period, if position of respondent workman is to be considered, then, it is more serious. The service of workmen terminated on 21st September 1983, in between, two ex-parte award passed by Labour Court in favour of petitioner i.e. (i) 28th May 1991 and (ii) 21st December 1998, even though, 11 employees are remained without service and benefits. The respondents are out of job since 21st September 1983 i.e. for more than 25 years and still, workmen are waiting for justice because of lethargic approach, inaction, deliberate delay and culpable negligence on the part of the petitioner. The delay may defeat the justice which is sought by the respondents workmen. The respondents' right to life includes livelihood covered by Article 21 has been violated by public body and public officer without any legal base who is answerable for breach committed by petitioner violating the award under Section 29 of the Industrial Disputes Act, 1947. The legal right is already accrued in favour of respondents to get reinstatement and full backwages as per ex-parte award, it will have a great prejudice if this Court will entertain the petitions filed by petitioners after a period of ten years. The award if it is not implemented by petitioners, then, it amounts to an offence committed by petitioners. For that, prosecution can be filed by labour commissioner on the basis of complaint from workmen. The petitioners remained silent about ten years, then, now, to challenge being legally estopped under the principles of estopel. The principles of equity is also not applicable in such a gross case of delay. The petitioner has not explained satisfactorily the entire period of ten years and no sufficient cause is shown to this Court, no material produced before this Court which satisfied this Court being a sufficient cause to condone the delay.
8. According to my opinion, whatever averments made in petitions by the petitioners are vague and irresponsible averments, as if, the petitions can be filed by petitioners being a State authority at any time and at any moment having privilege as a State authority under Article 12 of the Constitution of India. The respondents are really sufferer for more than 25 years and from ex-parte award for more than ten years and not able to get the fruits of award because of inaction, deliberate delay and culpable negligence on the part of petitioners. Such efforts/attempts cannot be encouraged by this Court while exercising the power under Article 226/227 of the Constitution of India, otherwise, a right which was accrued in favour of respondents will prejudice.
9. The apex Court has considered the same in case of State of Orissa v. Sri Pyarimohan Samantaray and Ors. in Para 6 which is quoted as under:
6. It would thus appear that there is justification for the argument of the Solicitor General that even though a cause of action arose to the petitioner as far back as 1962,on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the Indian Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was 'strenuously' urged for its consideration on behalf of the Government of India.
10. The Gujarat High Court (Coram : H.K. Rathod, J.) in case of Gujarat Water Resources Development Corporation Ltd. v. Baldevji Mohanji Solanki reported in 2006 (2) GLH 472 in Para 6 observed which is quoted as under:
6. The law on the question raised in the present petitions, has been examined by the Apex Court as well as various High Courts. That has been discussed as under:
6.1 In case of Bishnu Charan Mohantry v. State of Orrisa reported in AIR 1973 Orissa 1999, the following general principles relating to delay and laches has been laid down:
(i) The Limitation Act has no application to writ petitions. Where, however, a suit for identical relief would be barred by the law of limitation, the court would ordinarily refuse to exercise discretion to grant relief under Article 226.
(ii) Even if a suit for the same relief is not barred by limitation under the Limitation Act, yet the High Court may refuse to issue a writ, if otherwise the delay is not explainable by satisfactory reasons.
(iii) Two important circumstances to be borne in mind in all 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.
(iv) Where by the conduct of the party, the delay might fairly be regarded as equivalent to a waiver of the remedy, the relief under Article 226 would be refused.
(v) Even if the conduct or act is not equivalent to a waiver, if the neglect of the petitioner put to opposite party in a situation in which it would not be reasonable to place him if the remedy is afterwards granted, the relief under Article 226 should be refused on account of delay and laches.
(vi) Utmost expedition is the essence for a claim under article 226; and
(vii) no hard and fast rule can be laid down. Each case is to be determined on its own facts and circumstances.
6.2 The further view has laid down by the Supreme Court in case of P.S. Sadasivaswamy v. State of Tamil Nadu . Relevant observations of the said decision is quoted as under:
It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters.
6.3 In the case of Eastern Coal Fields Ltd. v. Central Government Industrial Tribunal reported in 2000 III LLJ 3, the Calcutta High has held in Para, 6, 7 and 8 as under:
6. Having heard the learned counsel for the parties we are of the opinion that it is not a fit case where this Court should interfere with the impugned judgment and order as apart from the fact that the learned trial Judge has refused to exercise its power of judicial review it had also recorded a finding as regards the question of delay in the following terms:
Before parting with this case it should be noted that though the learned Tribunal passed the award as far back as March 28, 1984 th writ application was not filed before February 8, 1990 on the plea that delay was due to the fact that Government permission could not be obtained before February 7, 1989. The explanation is not satisfactory. The plea of delay on the ground of office formalities is absolutely untenable especially in case of Industrial Disputes where there was illegal termination of service about 20 years ago. It was submitted on behalf of the respondent union that this long delay on the part of the management of all the workmen not only the wasting of their valuable years of lives but have also caused death to some of them. It is true, that there is no limitation in filing the writ application but that shall not automatically entitle the petitioner to make limitless delay in filing the writ application, especially, in case of the present nature, where such delay brought untold miseries to the workmen. There being unreasonable delay in filing the application on frivolous ground the writ Court would have refused to grant any relief to the petitioner, even if it had been otherwise entitled to it. The writ petition is liable to be rejected on the ground of delay also.
7. Mr. Ginwala submits that delay cannot be considered to be a ground for refusing to exercise its jurisdiction by the High Court in a case where the writ of prohibition is to be issued. The submission of the learned counsel cannot be accepted for more than one reasons. The appellant primarily has prayed for issuance of a writ of certiorari for quashing of the aforementioned award dated March 28, 1994 passed by the Industrial Tribunal. Prayer for issuance of a writ of prohibition had been sought for and the same could be issued only in the event the primary prayer of the appellant viz. A writ of certiorari would be issued. It is now a well settled principle of law that the delay defeats equity. It is further well settled that a person who sleeps over its right cannot claim any equity in enforcing its right before a writ Court.
8. Writ of certiorari as is well known is a discretionary remedy. A writ Court does not exercise its jurisdiction under Article 226 of the Constitution of India merely because it is lawful to do so. While exercising its Jurisdiction under Article 226 a writ Court may take into account several factors, delay being one of them. As noticed by the learned trial Judge the concerned workmen were refused employment as far back as in the year 1975 and reference was made by the Central Government only on August 1, 1978. The learned Tribunal below made its awards on March 28, 1984. The writ application had been filed only on February 8, 1990. The only explanation which the appellant gave before the learned Trial Judge was that it was required to obtain permission of the Central Government for filing a writ application which could not be obtained before February 7, 1989. the said explanation, having been offered without any particulars, did not find favour with the learned trial Judge. He, therefore, refused to exercise its discretion.
6.4 In case of M.C.D. v. Rajkumar and Ors. reported in 2004 Lab IC 2334, the Delhi High Court has held in Para 3 and 4 as under:
3. This writ petition challenges the Award dated 10th July, 2000. Learned counsel for the petitioner submits that the award was published on 4th January,2001 and the information relating thereto was received in the office of the petitioner Corporation on 14th February,2001. However, the writ petition was filed in this Court only on 18th February,2002. There is no other explanation for the delay and laches in filing the writ petition. Mr.Monga has submitted that in matters relating to the movement of files in Government Department, files move at their own pace and such delay in the movement of the official files occur because they are required to go through several channels. Consequently the delay in filing the writ petition is not such which should dis-entitle the petitioner to approach this Court under Article 226 of the Constitution.
4. In my view, institutionalized lethargy cannot be any ground to explain the laches of more than one year. Merely because the bureaucratic machinery in MCD moves slowly cannot be a ground for condoning laches.
6.5 In case of Bhoop Singh v. Union of India , the Apex Court has held in Para.8 as under:
8. There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that behalf. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed. Accepting the petitioner's contention would upset the entire service jurisprudence and we are unable to construe Dharampal in the manner suggested by the petitioner. Art. 14 or the principle of non-discrimination is an equitable principle and, therefore, any relief claimed on that basis must itself be founded on equity and not be alien to that concept. In our opinion, grant of the relief to the petitioner, in the present case, would be inequitable instead of its refusal being discriminatory as asserted by learned counsel for the petitioner. We are further of the view that these circumstances also justify refusal of the relief claimed under Art. 136 of the Constitution.
6.6 In case of State of M.P. and Ors. v. Nandlal Jaiswal and Ors. , the Apex Court has held in Para.23 as under:
23. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the 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 in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. We may only mention in the passing two decisions of this Court one in Ramanna Dayaram Shetty v. International Airport Authority of India and the other in Ashok Kumar v. Collector, Raipur . We may point out that in R. D. Shetty's case (supra), even though the State action was held to be unconstitutional as being violative of Article 14 of the Constitution, this Court refused to grant relief to the petitioner on the ground that the writ petition had been filed by the petitioner more than five months after the acceptance of the tender of the fourth respondent and during that period, the fourth respondent had incurred considerable expenditure, aggregating to about Rs. 1.25 lakhs, in making arrangements for putting up the restaurant and the snack bar. Of course, this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the Court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it.
6.7 In case of Delhi Transport Corporation v. Jai Bhagwan reported in 2003-I LLJ 1029, the Delhi High Court has held in Para.4 and 5 as under:
4. My attention has been drawn by Ms.Bajaj to the judgment of the Constitution Bench in State of Madhya Pradesh v. Bhailal . The Apex Court observed that:
It is not easy nor is it desirable to lay down any rule for universal application. It may, however, be stated as a general rule that if there has been unreasonable delay, the Court ought not to ordinarily lend its aid to a party by this extraordinary remedy of mandamus.... It appears to us, however, that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 of the Constitution of India can be measured. This Court may consider the delay unreasonable, even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.
It will be relevant to bear in mind that the Constitution Bench was concerned with a situation where the petitioner has voiced the grievance that he had been assessed to tax under a void statute. Even in those extraordinary circumstances, the Supreme Court has declined to over look the laches. Ms.Kittoo Bajaj also relies on the decision of the Supreme Court in Maharasthra Road State Corporation v. Balvant Regular Motor Service, Amravati . In that case, the Apex Court again articulated that;
It is well established that the writ of certiorari will not be granted in a case where 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 adverse party.
The Court relied on Lindsey Petroleum Co. v. Prosper Armstrong Hurd, Arbran Farewell and John Kemp (1874) 5 PC 221 and also specifically noticed in its earlier decision in Moon Mills Ltd. v. M.R. Neher, President, Industrial Court, Bombay AIR 1967 SC 1450 : 1967-II LLJ 34, Ms. Kittoo Bajaj relies on the observations of the Apex Court in Naik Subedar Lachhman Dass v. Union of India , there the Court found that the writ petition has been filed after gross delay for which there was no specific explanation and, therefore, endorsed the High Court's decision for a summary dismissal of the action. It may be observed that the laches have not even been attempted to be answered or explained by the DTC.
5. On the issue of delay and laches, Mr.Vibhu Shankar, learned Consel for the petitioners, has relied heavily on Para.6 of the judgment in Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay (Supra) which reads as under at p. 38 of 1967-II-LLJ 34.
On behalf of the respondents Mr. B. Sen, however, pointed out that the conduct of the appellant does not entitle it to the grant of a writ, because it has been guilty of acquiescence or delay. It was pointed out that the award of Mr. Bhat was given on April 25, 1958 but an application to the High Court for grant of a writ was made long after on November 16, 1959. We do not think there is any substance in this argument, because the second respondents had made an application, dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a Written Statement, dated September 15, 1958. The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The decision of the Industrial Court was given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November 16, 1959. Mr. B. Sen then put forward the argument that the appellant itself had acted on the bonus agreement and on October 14, 1957 had issued a notice informing its workers that "pursuant to the award of the Industrial Court in terms of the agreement, dated March l, 1956 reached between the Millowners' Association, Bombay, and the Rashtriya Mill Mazdoor Sangh, regarding payment of bonus would be paid to them at 4.8 per cent of the total basic earning during 1956". On October 27, 1956 the appellant and the Secretary of the second respondents signed a joint statement in which it was stated as follows:
Since it has not yet been possible to complete bonus calculations for all these years, it is hereby agreed between the Rashtriya Mill Mazdoor Sangh, Bombay, and the Moon Mills Ltd, Bombay, that under the Bonus Agreement the Moon Mills should pay a bonus at the rate of 4.8 per cent for each of the years 1953, 1954 and 1955 as a tentative payment.
It was, therefore, contended that the appellant itself had agreed with the second respondents to pay bonus for 1953, 1954, 1955 and 1956 according to the terms of the bonus agreement. It was also pointed out that the appellant had not pressed its objection with regard to jurisdiction before the Labour Court or the Industrial Court. But it appears that the decision of this Court in Prakash Cotton Mills case, , was given on February 16, 1961 after the decision of K. K. Desai, J. on July 1, 1960 and before the decision of the Letters Patent Bench on February 6, 1962. In the circumstances of this case, we do not consider that there is such acquiescence on the part of the appellant as to disentitle it to a grant of a writ under Art. 226 of the Constitution. It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted 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 adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery. The principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp (1874) 5 PC 221 at p. 239, as follows:
Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as related to the remedy.
In the present case, we are of opinion that there is no such negligence or laches or acquiescence on the part of the appellant as may disentitle it to the grant of a writ.
11. Recently, the Apex Court in case of Nadia Distt. Primary School Council and Anr. v. Sristidhar Biswas and Ors. has observed in Para 4 which is quoted as under:
4. We have heard learned counsel for the parties. Learned counsel for the appellants submitted that the persons who had not approached the Court in time and waited for the result of the decision of other cases cannot stand to benefit. The Court only gives the benefit to the persons who are vigilant about their rights and not who sit on fence. Mallick's case was decided in 1982, in 1989 Dibakar Pal filed the petition and thereafter in 1989 respondents herein filed the writ petition. Thereafter petition filed by Dibakar Pal challenging the panel of 1980 was hopelessly belated. Likewise the present writ petition filed by the respondents herein. The explanation that the respondents waited for the judgment in Mallick's case or Dibakar's case, is hardly relevant. In this connection, learned counsel invited our attention to a recent decision of this Court in Chairman, U.P. Jal Nigam and Anr. v. Jaswant Singh and Anr. JT 2006 (10) 500. In that case, referring to various decisions of this Court, it was observed that those who sit on the fence and wait for a favourable order and thereafter wake up to take up the matter, are not entitled to any relief. In para 13 of the judgment, this Court concluded as follows:
In view of the statement of law as summarized above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence.
In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision in Dibakar Pal's case. 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.
12. In case of Shiv Dass v. Union of India and Ors. , the Apex Court has made observation in Para 7 to 9 which are quoted as under:
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd etc. (1874) 5 P.C. 221 at page 239 was approved by this Court in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors. AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors. , 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 and Ors. , 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 Court in deciding whether or not to exercise such jurisdiction.
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 K.V. Raja Lakshmiah v. State of Mysore AIR 1967 SC 993. 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. Sri 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 State of Orissa v. Arun Kumar also.
13. In view of observations made by Apex Court as well as this Court, not to condone the delay if it is not satisfactorily explained by the petitioner and not shown sufficient cause or material or record to condone the delay. Therefore, the submissions made by learned advocate Mr. Pradeep Patel cannot be accepted and delay in filing the present petition cannot be condoned, otherwise, this Court is doing injustice to the respondents.
14. The petitioner is having alternative effective remedy to again file an application for setting aside the ex-parte award dated 21st December 1998 under Rules 26A/26B of the Industrial Disputes (Gujarat) Rules, 1966. In the present petition, number of disputed questions are involved. This court cannot go into for deciding it while exercising the power under Article 227 of the Constitution of India. This contention was raised by learned advocate Mr. Pradeep Patel before this Court in earlier group of petitions being Special Civil Application No. 28875 of 2007 to No. 28885 of 2007 with SCA No. 28924 of 2007 with SCA No. 28933 of 2007 dated 7th December 2007 (Coram : H.K. Rathod, J.). The similar ex-parte award was challenged by petitioner by filing direct petition by Kheda District Panchayat which was almost based on similar facts and this Court has not entertained that group of petitions on the ground that petitioner is having alternative statutory effective remedy under Rule 26A and also involved the disputed questions of facts in the group of petitions. Therefore, reasoning given by this Court in aforesaid group of petitions by order dated 7th December 2007 as referred above is to be treated as reasoning in this group of petitions also and therefore, this group of petitions are not entertained by this Court on the basis of reasoning given by this Court in the oral order dated 7th December 2007 as referred above. Therefore, this group of petitions is also not entertained by this Court and submissions made by learned advocate Mr. Pradeep Patel are also rejected accordingly. A xerox copy of order dated 7th December 2007 is ordered to keep with in file of the present group of petitions.
15. In view of above observations made by this court relying upon the decisions of Apex Court as well as this Court and considering the facts, this Court is not condoning the delay of ten years in challenging the ex-parte award passed by Labour Court, Nadiad dated 21st December 1998 as sufficient cause is not shown by petitioner to the satisfaction of this Court and delay is not satisfactorily explained and no material and documentary evidence produced by petitioner and no affidavit of advocate and name of advocate is disclosed by petitioner.
16. Therefore, considering the vague explanation of delay, the alternative remedy available to the petitioner and involving the disputed questions of facts, this group of petitions is not entertained by this Court and accordingly, all the petitions of this group are dismissed summarily.