Himachal Pradesh High Court

Decided On: 5Th May vs State Of H.P. & Ors on 5 May, 2025

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

2025:HHC:12335

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.3856 of 2023 Decided on: 5th May, 2025 _________________________________________________________________ Puran Chand ....Petitioner

Versus State of H.P. & Ors. ...Respondents _________________________________________________________________

Coram

Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting?

_________________________________________________________________ For the petitioner: Mr. Loveneesh Singh Thakur, Advocate.

For the respondents: Mr. L.N.Sharma, Additional Advocate General.

Jyotsna Rewal Dua, Judge

Service of the petitioner was regularized by the

respondent-Jal Shakti Vibhag on 24.02.2015 as Beldar.

Instant writ petition was filed on 12.06.2023, wherein,

petitioner seeks modification in the office order dated

24.02.2015 and desires ante dated regularization of his

service w.e.f. the year 2006 on immediate completion of ten

years of daily waged service.

2. Heard learned counsel for the parties and

Whether reporters of Local Papers may be allowed to see the judgment? yes

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considered the case file.

3. Learned counsel for the petitioner submits that

petitioner was appointed as daily wage Beldar on 01.01.1996

in the respondent-Department. As per applicable policy for

regularization of services of daily waged employees, the

petitioner was entitled to be regularized in service on

completion of ten years of daily wage service i.e. in the year

2006.

Petitioner's above prayer cannot be accepted. The

case file shows that services of the petitioner were terminated

by the respondent-Department in August 2004. Reference No.

115/2011 sent in that regard by the appropriate Government

to the learned Labour Court-cum-Industrial Tribunal on

27.08.2011, was decided on 17.01.2013. Learned Labour

Court-cum-Industrial Tribunal partly allowed the claim by

setting aside petitioner's retrenchment. Respondent-

Department was directed to reinstate the petitioner

'forthwith'. Petitioner was held entitled to seniority and

continuity in service from the date/month of his illegal

termination i.e. August 2004, except back wages. Operative

directions of the award are as under:-

"25. As a sequel to my findings on the various issues, the

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instant claim petition succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and quashed. The respondent is directed to reinstate the petitioner forthwith. He shall be entitled to the seniority and continuity in service from the date/month of his illegal termination i.e. August, 2004 except back wages. Parties to bear their own costs."

It is, thus, evident that service rendered by the

petitioner prior to 2004 was not to be counted towards his

seniority and continuity. Petitioner was ordered to be

reinstated forthwith w.e.f. August 2004. In fact, learned

Labour Court-cum-Industrial Tribunal also held that

petitioner had not rendered 240 days in a block of 12

calendar months preceding the date/month of his

termination i.e. August 2004. This is apparent from following

paragraphs of the award passed by the learned Labour Court-

cum-Industrial Tribunal: -

"15. It is the admitted case of the respondent that the services of the petitioner were engaged as a daily wager on 01.1.1996 and he served intermittently up-to the month of August, 2004. The version of the petitioner is that in the month of August, 2004, his services were wrongly and illegally dispensed with by the respondent by a verbal order. While denying the said fact, the respondent has pleaded that the petitioner used to work as per his sweet will and convenience. In the month of August, 2004, he abandoned the job of his own accord and free

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volition.

16. .......

17. The man-days chart Ex. RW1/B depicts that the petitioner did not complete 240 days of work in a block of 12 calendar months preceding the date/month of his termination i.e. August, 2004 as envisaged under Section 25-B of the Act. Therefore, the provisions of Section 25-F of the Act are not attracted in this case."

Respondents in their reply have clearly stated that

petitioner was an intermittent worker who had worked for

218 days in 1996, 79 days in the year 1997, 259 days in the

year 1998, 40 days in 1999. He did not work during the years

2000 to 2003. He worked for 106 days in the year 2004.

Petitioner worked for 240 days w.e.f. 01.01.2004 onwards.

Therefore, petitioner's plea that service rendered by him prior

to 2004 is also required to be taken into consideration while

regularizing his service, cannot be accepted at this state.

Award passed by the learned Labour Court-cum-Industrial

Tribunal has attained finality.

4. Learned counsel for the petitioner next contended

that for the purpose of regularization even if petitioner's

service is considered w.e.f. August 2004, then also his

regularization order dated 24.02.2015 requires to be

modified. In support of this prayer, it has been urged that

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petitioner's juniors were regularized much earlier.

Firstly, it is to be noticed that names of alleged

juniors, whose services are stated to have been regularized

prior in time to that of the petitioner, have not been given in

the writ petition. Secondly, the respondent-Department in its

reply has pleaded that petitioner's services were regularized

from prospective date on completion of seven years of service

as per policy dated 31.03.2013 on the recommendations

of the screening committee dated 19.02.2015 under order

dated 24.02.2015. The petitioner did not satisfy the

educational qualification required for regularization against

the post. Therefore, his services were regularized by granting

him relaxation from possessing requisite educational

qualification. Averments in the reply, have not been rebutted

by the petitioner by filing any rejoinder.

Thirdly, it is seen that services of the petitioner

were regularized on 24.02.2015. The petitioner accepted the

aforesaid regularization order. After eight years of his

regularization, petitioner filed this writ petition on

12.06.2023. The claim of the petitioner now is barred not

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only by unexplained delay and laches but acquiescence as

well. In Bichitrananda Behera Versus State of Orissa

and others2, Hon'ble Supreme Court highlighted the

significance of the doctrines of delay & laches and

acquiescence in service-related disputes. Hon'ble Court

observed that the claimant therein had delayed pursuing his

claim for over 12 years' despite being aware of the

appointment of another person to the same post of Physical

Education Trainer (PET). This prolonged inaction was held to

amount to acquiescence, which effectively bars the claim

because it implies consent through silence or failure to act.

Hon'ble Apex Court explained that while laches refers to an

unreasonable delay without active consent, both delay and

laches serve the important purpose of preventing stale claims

that disrupt settled rights and administrative decisions. In

service matters, these doctrines were held to play crucial

roles as they protect the stability and finality of

administrative decisions. Relevant portion of the judgment

reads as under:-

" 21. Profitably, we may reproduce relevant passages from certain decisions of this Court:

2 Civil Appeal No.6664 of 2023 (@ Special Leave Petition (Civil) No.16238 of 2017), decided on 11.10.2023

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"(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:

"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

(emphasis supplied) (B).................

21-23. .................

Acquiescence
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24.      We     have    already   discussed     the     relationship

between acquiescence on the one hand and delay and laches on the other.

25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis."

36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non-

existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the

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order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case.

Xxx

38. In Ram Chand v. Union of India [Ram Chand v. Union of India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action.

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The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 1213).

"12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows:

'In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii) any change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were

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afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.'

13. In view of the statement of law as summarised 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 it 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 repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"

39. Before proceeding further, it is important to clarify distinction between "acquiescence" and "delay and laches". Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is

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completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See "Introduction", U.N. Mitra, Tagore Law Lectures -- Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence.

40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually

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destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC On Line Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation."

In view of above, there is no merit in the present

writ petition. The same is accordingly dismissed.

Pending miscellaneous application(s), if any, also

to stand disposed of.

Jyotsna Rewal Dua Judge May 5, 2025 R.Atal