Enaganti Sivaiah vs Apsrtc Rep. By Its Vice Chairman ...
2023 Latest Caselaw 134 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

              WRIT PETITION No.34956 OF 2016

ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India for the following relief:-

"To issue any appropriate Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in placing the petitioner in the time scale of Shramik and non-payment of salary from the date of my unfitness till the date of providing alternate differences of salary payable to petitioner that is differences of salary driver and Shramik as arbitrary and violative of Articles 14 and 21 of the Constitution of India and Section 47 and other provident of persons with disability, with equal opportunities (Protection of Rights and full participation) Act, 1995 consequently direct the respondents to pay petitioner the salary from the date of my unfitness till the date of my alternative employment and payment of differences of salary between driver and shramik with all consequential attend benefits and payment of my retirement benefits such as gratuity, leave salary, SBT, SRBS on the basis of last payable salary of

driver together with interest @ 12% per annum grand cause of proceedings and pass such other orders."

2. The petitioner worked as Driver in Andhra Pradesh

State Road Transport Corporation (APSRTC) from 01.09.1992 to

24.05.2011 and he was declared medically unfit on 25.05.2011

and he was appointed as Shramik on 25.11.2011 in the 3 rd

respondent-Depot and worked as such upto 30.06.2016 on

which date, he retired from service on attaining superannuation

age of 58 years. It is the case of the petitioner that he was

declared medically unfit on 25.05.2011 and his salary was not

paid from the date of medically unfitness, i.e., 25.05.2011 till the

date of his appointment as Shramik on 25.11.2011 and he was

not given pay scale from the date of his re-appointment as

Shramik and, on the other hand, he was given pay scale of

Shramik and therefore, he requested the respondents to pay

number of times for payment of difference of salary, but the

respondents are dodging payment and the respondents also did

not pay his retiremental benefits, viz., SSB earned leave

encashment and difference of gratuity. It is the contention of the

learned counsel for the petitioner that under Section 47 of the

Persons With Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995 (hereinafter called, 'the

Act, 1995'), if an employee of acquiring disability is not suitable

for the post should be shifted to some other post with the same

pay scale and service benefits provided further that if it is not

possible to adjust the employee in any other post, he may be

kept on a supernumerary post until the suitable post is available

or he attains age of superannuation whichever is earlier. It is

the further contention of the petitioner that he was medically

unfit for the post of Driver and therefore, he was re-appointed as

Shramik and shall be entitled for pay scale of the Driver though

he was re-appointed as Shramik and under Section 47 of the

Act, 1955, he is entitled for the pay scale of the Driver and even

after repeated representations, the respondents have responded

and therefore the present Writ Petition is filed. He relied on a

judgment of the composite High Court in the case of K.Moses v.

APSRTC, Musheerabad, Hyderabad and others1 on aspect of

entitlement of pay scale under Section 47 of the Act, 1955, and

2011 (1) ALD 823

he also relied on orders of this Court in W.P.No.36337 of 2011

and batch, wherein in the said case, the High Court has directed

the authorities to pay arrears of pay and allowances with 8%

interest from the due date till the date of payment, when the

driver was declared medically unfit.

3. Per contra, learned counsel for the respondents filed

counter and would contend that due to the disability of the

petitioner herein, he was provided with an alternative

employment of Shramik and his pay will be protected based on

the category of employment, whereby once an alternative

employment is provided pay scale will be provided on the allotted

category and there are no justifiable grounds in the Writ Petition

and it is not warranted any interference of this Court and he

would also contend that the petitioner has approached this

Court with a delay of 6 years for seeking the relief and, therefore,

he is not entitled for the relief and he relied on a judgment of the

Hon'ble Apex Court in the case of Rushibhai Jagdishchandra

Pathak v. Bhavnagar Municipal Corporation 2, wherein it was held

by the Hon'ble Apex Court by following several judgments that

2022 SCC Online SC 641

the law of limitation does not apply to the Writ Petitions, albeit

the discretion vested with a constitutional court is exercised with

caution as delay and laches principle is applied with the aim to

secure the quiet of the community, suppress fraud and perjury,

quicken diligence and prevent oppression and further held that

there must be a lifespan during which a person must approach

the court for their remedy, otherwise, there would be unending

uncertainty as to the rights and obligations of the parties by

referring the judgment in the case of Moons Mills Ltd. v. M.R.

Mehar, President, Industrial Court, Bombay and others 3 and

referred to the view expressed by Sir Barnes Peacock in The

Lindsay Petroleum Company and Prosper Armstrong Hurd, Abram

Farewell, and John Kemp4 in the following manner:

"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

AIR 1967 SC 1450

(1874) LR 5 PC 221

reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important 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."

4. The Hon'ble Apex Court further relying on the

judgment in the case of Union of India and others v. Tarsem

Singh5 while relying on the decision of Shiv Dass v. Union of India

and others6 quoted the following passages from the latter

judgment:

"10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. If petition is filed beyond a

(2008) 8 SCC 648

(2007) 9 SCC 274

reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."

Eventually, the Hon'ble Apex Court held that the High Courts

would restrict the consequential relief relating to arrears

normally to a period of three years prior to the date of filing of

the Writ Petition.

5. Per contra, learned counsel for the respondents would

submit that the respondents cannot take the defence of the delay

and laches once the matter has been admitted and at the time of

final hearing and he also relied on the judgment of the Hon'ble

Apex Court in the case of Ramachandra Shankar Deodhar and

others v. The State of Maharashtra and others 7, wherein a

Constitutional Bench observed at paragraph No.9 that we do not

think this contention should prevail with us and in the first place,

it must be remembered that the rule which says that the Court

may not inquire into belated and stale claims is not a rule of law,

but a rule of practice based on sound and proper exercise of

AIR 1974 Supreme Court 259

discretion, and there is no inviolable rule that whenever there is

delay, the court must necessarily refuse to entertain the petition

and it is further observed that there is no lower limit and there is

no upper limit and it will all depend on what the breach of the

fundamental right and the remedy claimed are and how the delay

arose and it is also observed that it may also be noted that the

principle on which the Court proceeds in refusing relief to the

petitioner on the ground of laches or delay is that the rights which

have accrued to others by reason of the delay in filing the petition

should not be allowed to be disturbed unless there is reasonable

explanation for the delay and the petitioner also relied on

another judgment of this Court in the case of Sri Ch.S.Rajeswara

Rao v. Government of A.P., rep. by Principal Secretary, Transports

Department and others dated 14.09.2022 in W.P.No.5486 of

2011, a learned Single Judge of this Court held that even if there

are laches on the part of the petitioner, the Court, while

exercising its discretion, should lien in favour of entertaining the

petition and deciding the same on merits to impart justice to the

disabled person. The learned Single Judge also relied on the

judgment of the Hon'ble Apex Court in the case of Narayani Debi

Khaitan v. State of Bihar and others8 and the Hon'ble Apex Court

held that no hard and fast rule can be laid down as to when the

High Court should refuse to exercise its jurisdiction in favour of

a party who moves it after considerable delay and is otherwise

guilty of laches and the learned Single Judge eventually held

that the disability by itself can be considered to be a ground

disentitling the petitioner in not approaching this Court at the

earlier point of time.

6. By relying on the above judgments, learned counsel

for the petitioner would submit that this Court can exercise

discretion for doing substantial justice and the delay would not

cause any impediment for exercising the jurisdiction under

Article 226 of the Constitution of India.

7. A Full Bench of the composite High Court in the case

of P.V.Narayana v. APSRTC, Hyderabad and others9, after

considering numerous judgments, right from the year 1964, has

laid down the guidelines, which are extracted hereunder:

1964 SCC Online SC 1

2013 (4) ALD 386 (FB)

"(1) Though no period of limitation is prescribed for the writ Courts to exercise their powers under Article 226 of the Constitution of India or to file a writ petition, a person aggrieved should approach the Court without loss of time. In appropriate cases, where there is delay and the same has properly been explained with cogent reasons, Court may condone the delay as an exception to meet the ends of justice. 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.

(2) Courts have evolved rules of self-imposed restraints or fetters where the High Court may hot enquire into belated or stale claim and deny relief to a party if he is found guilty of laches. One who is tardy, not vigilant and does not seek intervention of the Court within a reasonable time from the date of accrual of cause of action or alleged violation of the constitutional, legal or other right, is not entitled to relief under Article 226.

(3) No hard and fast rule can be laid down for universal application and every case shall have to be decided on its own facts.

(4) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the

petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.

(5) There is no lower limit or upper limit and it will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose.

(6) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.

(7) Where there is remiss or negligence on the part of a party approaching the Court for relief after an inordinate and unexplained delay, in such cases, it would not be proper to enforce the fundamental right As a general rule if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party in exercise of the extraordinary power of mandamus.

(8) There is no waiver of fundamental right. But while exercising discretionary jurisdiction Court can take into account delay and laches on the part of the applicant in approaching a writ Court.

(9) Though the High Court in exercise of the power under Article 226 in its discretion grant relief in cases where the

fundamental rights are violated, but, in such cases also, High Court, to meet the ends of justice, shall refuse to exercise its high prerogative jurisdiction in favour of a party who has been guilty of laches and where there are other relevant circumstances which indicate that it would be inappropriate to exercise the discretionary jurisdiction.

(10) 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 taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured.

(11) 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. Courts have applied the rule of delay with greater rigor in service matters.

(12) The benefit of a judgment cannot be extended to a case automatically. The Court is entitled to take into consideration the fact as to whether the petitioner had chosen to sit over the matter and wake up after the decision of the Court If it is found that the petitioner approached the Court with unreasonable delay, the same may disentitle him to obtain a discretionary relief. Long Delay disentitles a party to the discretionary relief under Articles 32 and 226 and persons who had slept over their rights for long and elected to wake up when they had the impetus from the judgment of similarly placed persons.

(13) Where during the intervening period rights of third parties have crystallized, it would be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and where there is no cogent explanation for the delay.

(14) Where the appellate authority acting within its jurisdiction condoned the delay after being satisfied with the facts stated in relation thereto, the High Court in exercise of its powers under Article 226 or 227 of the Constitution should not ordinarily interfere with the order."

8. Under guideline No.8, the Full Bench held that even

though there is no waiver of fundamental right, but while

exercising discretionary jurisdiction Court can take into account

the delay and laches on the part of the petitioner in approaching

this Court. Under guideline No.10, the Full Bench held 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 taken to be a reasonable standard by which delay in

seeking remedy under Article 226 of the Constitution of India

can be measured. The same principle has been stated in the

judgment in Rushibhai Jagdishchandra Pathak's case (2 supra).

In the present case, the petitioner has not assigned any reason

for the delay in the Writ Petition for approaching this Court for

the relief claimed. The relief claimed in the present Writ Petition

is relating to monetary benefits, i.e., differentiation of salary,

gratuity, etc.

9. Unless it is specifically or expressly provided it in any

act in general period of limitation as provided under the

Limitation Act is 3 years for recovery of money and money

related matters. If the principle adopted as held by the Hon'ble

Supreme Court in Rushibhai Jagdishchandra Pathak's (2 supra)

and the judgment of the Full Bench of the composite High Court

in P.V.Narayana's case (9 supra) under guideline No.10, 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 taken to be a reasonable standard by which delay in

seeking remedy under Article 226 of the Constitution of India

can be measured. If the same principle is adopted, the petitioner

herein has to file the present Writ Petition within a reasonable

time. The writ petitioner ought to have filed the Writ Petition in

the year 2011 but the present Writ Petition is filed in the year

2016. As such, there is a delay of 3 years in filing the Writ

Petition, apart from delay prescribed excluding from the date of

retirement. Admittedly, no reason has been assigned in the Writ

Petition for the delay. Though the provisions of the Limitation

Act may not strictly apply in the lack of jurisdiction, the

maximum period fixed by the legislature may ordinarily be

treated as reasonable period in seeking remedy under Article 226

of the Constitution of India. Learned Single Judge in Sri

Ch.S.Rajeswara Rao v. Government of A.P., rep. by Principal

Secretary, Transports Department and others dated 14.09.2022 in

W.P.No.5486 of 2011, has taken into consideration the disability

of the petitioner therein and the judgment of the Hon'ble Apex

Court in Rushibhai Jagdishchandra Pathak's case (2 supra) and

the judgment of the Full Bench of the composite High Court in

P.V.Narayana's case (9 supra) have not been referred in Sri

Ch.S.Rajeswara Rao's case, wherein it is categorically held that

though the period of limitation is not applicable strictly, 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 taken to be a reasonable standard by which delay in

seeking remedy under Article 226 of the Constitution of India

can be measured.

10. Learned counsel for the petitioner would submit that

the delay and laches is a pure question of fact which cannot be

agitated at the time of hearing. Answer: So far as the question of

laches is concerned, in my opinion, the mixed questions of law

and fact as the interference of laches based upon findings on fact

is of interference of law. The Hon'ble Apex Court in the case of

Board of Secondary Education of Assam v. Md. Sarifuz Zaman

and others10, has categorically held that the delay defeats the

discretion and loss of limitation destroys the remedy itself and

the delay amounting to laches results in benefit of discretionary

power being denied on principles of equity and loss of limitation

resulting into depriving of the remedy, is a principle based on

public policy and utility and not equity alone. Statutes of

limitation are sometimes described as 'statutes of peace' and

unlimited and perpetual threat of limitation creates insecurity

(2003) 6 SCC 408

and uncertainty; some kind of limitation is essential for public

order.

11. Hence, this issue is answered in favour of the

respondents herein and against the petitioner herein.

12. For the aforesaid reasons, this Writ Petition fails and

accordingly it is dismissed, however, no costs.

As a sequel, interlocutory applications pending, if any, in

this Writ Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 06.01.2023 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.34956 OF 2016

Date: 06.01.2023

siva