SUPREME COURT OF INDIA
Karnataka Power Corporation Limited Through Its Chairman and Managing
Director and Another
Vs
K. Thangappan and Another
Civil Appeal No. 3726 of 2000
(Arijit Pasayat and Tarun Chatterjee, JJ)
04.04.2006
ARIJIT PASAYAT, J.
Challenge in this appeal is to the legality of the judgment rendered by a Division Bench of the Karnataka High Court upholding the view of the learned Single Judge directing the appellants to appoint respondent No. 1 (hereinafter referred to as the 'workman') in an appropriate vacancy in terms of Clause 4 of the Settlement dated 29.1.1979.
2. Factual position in a nutshell is as under:
Respondent No.l was working as a nominal muster roll workman with the appellant
No.l- Karnataka Power Corporation Ltd. (In short '"Corporation"). On
29.1.1979 a settlement was arrived at in terms of Section 12(3) of the Industrial Disputes Act, 1947 (in short the 'Act'). Clause
4 of the Settlement which is relevant reads as follows:
"Casual Labour - Casual workmen who have worked for a period of not less
than 240 days during a period of 12 calendar months are agreed to be brought on
monthly establishment from the first of the following month effective from
1.10.1978, subject to availability of vacancies. The surplus workmen, if any,
will be kept on the waiting list and appointed as and when vacancies occur. In
the case of workmen who are not provided with work during monsoon period, the
number of days worked in two consecutive seasons will be counted to determine
their eligibility".
3. According to the appellants, the respondent did not report for duty since
February, 1979 and accordingly his name was removed from the nominal muster
roll. In October 1997, respondent No.l-workman addressed a letter to the Corporation
and sought employment as a Mason. The request was repeated on 17.1.1998 and
thereafter in June, 1998. In reply, the appellant-Corporation stated that since
respondent No.l was not working with the Corporation at the time of
confirmation of other nominal muster roll employees and the matter was 20 years
old, it would not be possible to consider the request for providing employment.
On 18.8.1998 a writ application was filed before the Karnataka High Court
praying, inter alia, for a direction to consider the writ petitioner for the
post of Ist Class Mason. Corporation filed its reply pointing out that the writ
petition was liable to be dismissed on the grounds of delay and laches.
However, by order dated 18.8.1999 the writ petition was allowed by a learned
Single Judge holding that it would be too much to expect a writ petitioner to
retain copies of the communications that he had sent to the Corporation. Since
the alleged acknowledgments produced had shown that some officers of the
Corporation received the communications it would be desirable to accept the
stand that representations were made and it would not be correct to say that
the writ petitioner had slept over the matter for 18 years, as he was agitating
the matter. The Writ Appeal filed by the Corporation was dismissed on the
ground that Clause (4) of the Settlement clearly provided that as and when
vacancy would arise, the workman would be appointed. That being the position,
there was no scope for interference with the order of the learned Single Judge.
4. Learned counsel for the appellant-Corporation and its functionaries
submitted that there was no evidence produced by the respondent to show that in
1982 and/or 1989 he approached the Corporation for employment. Even if it is
accepted for the sake of argument that he sent representations it is clear that
one was filed after three years and the other after 10 years. Significantly, in
the representations sent in 1997 and 1998 there was no reference to so-called
earlier representation, if any. This itself shows that there was no substance
in the plea of respondent No.l that he had been agitating the matter. In any
event, making a representation is not sufficient for filing a belated writ
petition. In response, learned counsel for respondent No. 1-workman submitted
that the High Court had proceeded on equitable premises and no interference was
called for.
5.The factual position as noted above clearly shows that for nearly 2 decades
the respondent No.l-workman had remained silent. As rightly pointed out by
learned counsel for the appellants even in the representations made in 1997 and
1998 there was no reference to the representations claimed to have been made in
1982 and/or 1989. Even if that would have been made, there was considerable
delay even in making the representations. There is no dispute that mere making
of representations cannot justify a belated approach.
6.Delay or laches is one of the factors which is to be borne in mind by the
High Court when they exercise their discretionary powers under Article 226 of
the Constitution. In an appropriate case the High Court may refuse to invoke
its extraordinary powers if there is such negligence or omission on the part of
the applicant to assert his right as taken in conjunction with the lapse of time
and other circumstances, causes prejudice to the opposite party. Even where
fundamental right is involved the matter is still within the discretion of the
Court as pointed out in Durga Prasad v. Chief Controller of Imports and
Exports . Of course, the discretion has to be exercised judicially and
reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum
Company v. Prosper Armstrong Hurd etc.[ 1874 (5) PC 221 at page 239] was
approved by this Court in Moon Mills Ltd. v. Industrial Courts 1967
AIR(SC) 1450 and Maharashtra State Road Transport Corporation v. Balwant
Regular Motor Service . Sir Barnes had stated:
"Now, the doctrine of laches in Courts of Equity is not an arbitrary or
technical doctrine. Where it would be practically unjust to give a remedy
either because the party has, by his conduct done that which might fairly be
regarded as equivalent to a waiver of it, or where by his conduct and neglect
he has though perhaps not waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases, lapse of time and delay
are most material. But in every case, if an argument against relief, which
otherwise would be just, if founded upon mere delay, that delay of course not
amounting to a bar by any statute of limitation, the validity of that defence
must be tried upon principles substantially equitable. Two circumstances always
important in such cases are, the length of the delay and the nature of the acts
done during the interval which might affect either party and cause a balance of
justice or injustice in taking the one course or the other, so far as relates
to the remedy."
8. It would be appropriate to note certain decisions of this Court in which
this aspect has been dealt with in relation with Article 32 of the
Constitution. It is apparent that what has been stated as regards that Article
would apply, a fortiori, to Art. 226. It was observed in R.N. Bose v. Union of
India that no relief can be given to the petitioner who without any
reasonable explanation approaches this Court under Article 32 after inordinate
delay. It was stated that though Article 32 is itself a guaranteed right, it
does not follow from this that it was the intention of the Constitution makers
that this Court should disregard all principles and grant relief in petitions
filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal , 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.
10. 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 . This was re-iterated in R.N. Bose's case (supra) by stating that 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. P. Samantaraj 1976 AIR(SC) 1617 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).
11.Additionally, whether Clause (4) of the Settlement was applicable to respondent No.l-workman could not have been adjudicated in a writ petition. In fact, the High Court has not even given any finding in that regard. As has been observed by this Court in ONGC Ltd. and another v. Shyamal Chandra Bhowmik 2006 (1) SCC 337 in cases of this nature a writ petition is not the proper remedy.
12.Looked at from any angle, respondent No. 1-workman was not entitled to any
relief. The orders of the learned Single Judge and the Division Bench cannot be
maintained and are set aside.
13.The appeal is allowed but in the circumstances with no order as to costs.
J