Delhi High Court
Delhi Transport Corporation vs Shri Jai Bhagwan, Ex Driver on 13 November, 2002
Equivalent citations: 2003(66)DRJ77, [2003(96)FLR979], (2003)ILLJ1029DEL, 2003(1)SLJ100(DELHI)
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
1. The Order which has been impugned in this Writ Petition is dated 23rd September, 1996 in which the Hon'ble Tribunal-II had dismissed the 'Approval' application of the Petitioner as a consequence of the Management's failure to pay costs.
2. Ms. Kittoo Bajaj, learned counsel for the Respondent, at the very threshold, concedes that the Order of dismissal of the Approval application on the ground of non-payment of costs may not be sustainable in view of the judgment of Division Bench of this Court in LPA No. 480/00 entitled Delhi Transport Corporation v. Shri Hari Narain Giri and Anr. The Hon'ble Division Bench had followed the view of the Apex Court in Punjab National Bank Ltd. v. Sri Ram Kunwar, Industrial Tribunal, Delhi and Ors., AIR 1957 SC 276 holding that in terms of Section 11(7) of the Industrial Disputes Act, the costs of the proceedings would mean costs of the entire proceedings as determined on its conclusion and not costs in a pending proceedings, nor costs to be incurred in future by a party. Single Benches of this Court have remanded cases for this very reason.
3. The contention of Ms. Kittoo Bajaj, learned counsel for the Respondent Workmen, however, is that the present Petition ought not be entertained in view of the inordinate and unexplained delay in its filing. The facts are that the Approval application, which has been assailed in this Writ Petition, was passed on 23rd September, 1996. Thereafter, the Workmen initiated the present proceedings under Section 33(2)(B) of the Industrial Disputes Act. It is not in controversy that those proceedings were strenuously contested by the DTC/Petitioner. Those proceedings came to an end on 9th May, 2002 and the Labour Court-VII had quantified the Workmen's dues at Rs. 1,34,985/- for the period September, 1994 to August, 1997. The present Writ Petition has been filed on 4th April, 2000. The period intervening between the dismissal of the Approval application and the filing of the present Writ Petition is, therefore, approximately four years.
4. My attention has been drawn by Ms. Bajaj to the judgment of the Constitution Bench is State of Madhya Pradesh v. Bhailal Bhai, . 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 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. The Court must 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 had voiced the grievance that he had been assessed to tax under a void statute. Even in those extraordinary circumstances, the Supreme Court had declined to overlook the laches. Ms. Kittoo Bajaj also relies on the decision of the Hon'ble Supreme Court in Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors., . 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 this right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party". The Court relied on Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Arbram Farewell, and John Kemp, 1874(5) PC 221 and also specifically noticed in its earlier decision in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors., AIR 1967 SC 1450. Ms. Kittoo Bajaj also relies on the observations of the Apex Court in Naib Subedar Lachhman Dass v. Union of India and Ors., , where the Hon'ble Court found that the Writ Petition had been filed after a 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 has not even been attempted to be answered or explained by the DTC.
5. On the issue of delay and laches, Mr. Vibhu Shankar, learned counsel for the Petitioner, has relied heavily on paragraph 6 of the judgment in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors. (Supra) which reads as under:-
6. 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 1, 1956 reached between the Mill-owners' 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 Mills 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, (1962) 2 SCR 105: (AIR 1951 SC
977) 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 Article 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 bene 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 t 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 defense mst 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."
"In the present case, we are of the 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."
6. Predicated on the above passage, it is Mr. Vibhu Shankar's contention that since the Petitioner was actively defending the action under Section 33(C)(2) filed by the Respondent Workmen, the decision applies on all fours. What needs to be borne in mind is that the period within which all the relevant litigation had taken lace in that case was less than two years. It was in those circumstances that the Hon'ble Supreme Court found the absence of any acquiescence on the part of the Management. The central point before me is not one of the acquiescence but that of delay. It is also of great significance that there is not even a whisper of an explanation given in the Petition justifying or explaining the Petitioner's approaching this Court after a period of four years, i.e. one year beyond the sanctioned period for a civil action. It may even be possible to perceive acquiescence in the Petitioner's conduct inasmuch as it has correlated the Petition to the issue of "leave without pay" rather than the dismissal for non-payment of costs.
7. Mr. Vibhu Shankar reiterates the argument that since the Division Bench has specifically ruled that an industrial action cannot be dismissed for failure to pay costs, particularly in view of Section 33, the Petitioner has a good case on merits and, therefore, the laches should be ignored. I am unable to accede to this argument, since it would annihilate the legal principles concerning delay and laches altogether. As has already been noticed, even where a person had been taxed under a void statute, the Hon'ble Supreme Court refused to interfere because of delay of a period beyond that prescribed for a civil action. It must also be mentioned once again, that Ms. Kittoo Bajaj has not laboured on the correctness of the Petition on merits in view of the judgment of the Hon'ble Division Bench.
8. In these circumstances, even though the Petitioner may have a good case on merits I am unable to close my eyes to the fact that this Court has been approached after an inordinate period of four years during which the Appellate while defending the Approval application under Section 33(C)(2) took no action to assail the dismissal of the Approval application on which the subsequent action was predicated. In paragraph 40 of the Writ Petition, there is a reference to the pendency of a number of writ petitions on the issue of "leave without pay". It is quite clear that it is the pendency of those petitions which spurred the Petitioner to file the present Petition. The Petition is clearly barred by delay, laches and limitation and is dismissed on this ground.
9. In the facts of the present case, keeping in perspective that the Petitioner has a good case on merits, there shall be no Orders as to costs. Ms. Kittoo Bajaj further presses for interim relief, as has been granted in CW No. 2830/96 by Orders dated 23rd July, 1997. The facts of that case are not forthcoming from the Orders. I am not persuaded to grant any interim measures.
10. The Petition is dismissed.