Singh Rai Majhi vs Presiding Officer
2023 Latest Caselaw 2323 Ori

                            ORISSA HIGH COURT: CUTTACK
AFR
                                     W.P(C) No.9304 of 2015
           In the matter of an application under Articles 226 and 227 of the
           Constitution of India.
                                       ---------------

           Singh Rai Majhi                       .....       Petitioner
                                               -Versus-
           Presiding Officer, Labour Court
           & Another                               .....                 Opp. Parties

                 For petitioner            : M/s. Sidhartha Mishra-I, P. Panda,
                                             K. Sahoo & S. Satpathy, Advocates

                 For opp. parties           :Mr. Sanjay Rath,
                                            Addl. Standing Counsel (O.P.No.1)

                                            M/s. Sarada Prasanna Sarangi, D.K.
                                            Das, P.K. Dash, A. Pattnaik & A. Das
                                            Advocates (O.P.No.2)

           P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing and Judgment:22.03.2023

Murahari Sri Raman, J.-- Assailing the Award dated 04.06.2007 of the Labour Court, Sambalpur in I.D. Case No. 4 of 2003 consequent upon the reference made by the Government of Odisha in Labour and Employment Department under Section 10 and Section 12 of the Industrial Disputes Act, 1947, with respect to the Management of M/s. Tata Sponge Iron Limited, Bileipada in the District of Keonjhar, the petitioner, an ambulance driver, approached this Court for invocation

W.P.(C) No.9304 of 2015 of provisions of Articles 226 and 227 of the Constitution of India with the following prayers:

"*** issue rule NISI in the nature of mandamus or any other appropriate writ/writs and call for the records from the court below and after hearing the counsel for the parties allow this writ application by directing the authority of the opposite parties more specifically to the opposite party No.2 to absorb the petitioner in his post with full back wages by setting aside the impugned judgment/order dated 04.06.2007 passed by the learned Tribunal, Sambalpur in ID Case No.04/2003 under Annexure-1;

And pass such order/orders, direction/directions to the authority of opposite parties more specifically to the opposite party No.2 by taking into account of the facts and circumstances of the present case as is deemed fit and proper by this Hon'ble Court. ***".

Facts of the case:

2. Appointed as an ambulance driver on 01.08.1991, while continuing as such in the opposite party No.2-Tata Sponge Iron Ltd., the petitioner was charge-sheeted on the following:

i. On 06.05.1999 at around 9.00 a.m. the petitioner refused to comply with the instruction of the dispensary staff of the company to carry a patient who was referred to TISCO Hospital at Joda.

ii. Taking ambulance from dispensary to the main gate of the plant, stopped the production by instructing employees working in different sections of the plant of the company over intercom to assemble, thereby caused substantial loss to the company.

W.P.(C) No.9304 of 2015 iii. He was instrumental in instigating other employees not to attend "C" shift duty.

2.1. It is the plea that since the petitioner tried to pacify

dissention between the Management of the company and the

workers' union, he was falsely implicated.

2.2. It is stated that domestic enquiry was conducted and as a result of recommendation thereof, the Management of the company-opposite party No.2 terminated the services of the petitioner. On reference by the appropriate Government, the learned Labour Court, Sambalpur has framed the following issues:

"i. Whether the domestic enquiry conducted by the management of M/s. Tata Sponge Iron Limited, Joda, Keonjhar is fair and proper?

ii. Whether the termination of services of Sri Singh Rai Majhi by the Managing Director, Tata Sponge Iron Ltd., Bileipada, Joda, with effect from 28.11.2000 is legal and justified?

iii. What relief, if any, the workman is entitled to?"

2.3. The learned Labour Court having adjudicated each issue against the petitioner, held inter alia that refusal of the petitioner to carry a patient to the referral hospital tantamounts to misconduct and misuse of ambulance for the purpose of Workers' Union being proved, the punishment handed out by the Management of the company is considered to be just and proper. Hence, questioning the

W.P.(C) No.9304 of 2015 veracity of findings of the learned Labour Court, the petitioner is before this Court in the present proceeding under Article 226/227 of the Constitution of India.

Arguments of the counsel for the respective parties:

3. Sri Sidhartha Mishra, counsel for the petitioner has contended that there was serious violation of principles of natural justice and the conclusion arrived at by the learned Labour Court is not in accord with evidence on record. There has been gross error in appreciation of the material notwithstanding the fact being placed that the petitioner was not involved in the incident that alleged to have occurred on 06.05.1999, as such the action of Management of M/s. Tata Sponge Iron Ltd. in terminating the petitioner smacks arbitrariness. Furthermore, the learned Labour Court taking into consideration false evidence of the Management of the company proceeded to accept the enquiry report which could not have been sustained. Therefore, it is urged by Sri Sidhartha Mishra, Advocate that the impugned Award, being illogical, the termination of service of the petitioner is liable to be set aside.

4. Per contra, Sri Sarada Prasanna Sarangi, learned advocate for the Management of M/s. Tata Sponge Iron Ltd. with vehemence urged that each of the points agitated by the petitioner has carefully been analysed by the learned Labour Court and came to just conclusion. The learned Labour Court not only took note of domestic enquiry report, but also

W.P.(C) No.9304 of 2015 weighed the oral and documentary evidence adduced by both the sides.

4.1. The learned Labour Court, having taken into consideration the evidence of witnesses examined, found that the petitioner refused to obey the request of the doctor to shift the patient and such turning down of instruction by him caused undue difficulty to the patient. It has been noted that the plea of the petitioner being on leave on the date of occurrence of incidence was also disbelieved by the learned Labour Court on ascertaining the attending circumstances prevailed on that date. The said Court also took note of the fact that such a plea did not form part of pleadings. After threadbare analysis of the evidence available on record it has been concluded that the petitioner refused to shift patient to Joda Hospital.

4.2. So far as second allegation is concerned, unauthorized use of the vehicle by taking it to main gate was proved inasmuch as the plea that the keys of the vehicle was handed over to the doctor was not pleaded; nonetheless, the telephonic communication to workers of different sections of the plant was brought on record by the Management by leading evidence. It is also well put forth by the Management of the company that due to instigation by the petitioner, the workmen could not attend "C" shift duty, as a consequence of which not only there was production loss but also financial loss.

W.P.(C) No.9304 of 2015 4.3. Sri Sarada Prasanna Sarangi, therefore, submitted that each charge vis-à-vis evidence has been discussed and properly considered by the learned Labour Court while making the Award. The petitioner could not discharge his burden to the effect that the facts found are perverse, thereby material irregularity was committed by the said Court leading to procedural infirmity in arriving at conclusion that the action of the Management of M/s. Tata Sponge Iron Ltd. in terminating the services of the petitioner suffers illegality. Hence, in absence of error in law in affirming the termination of service by the Labour Court, there is no necessity for this Court to interfere with the finding of fact in exercise of extraordinary jurisdiction.

5. Sri Sanjay Rath, learned Additional Standing Counsel for the opposite party No.1 supported the arguments advanced by Sri Sarada Prasanna Sarangi, Advocate for the opposite party No.2 and submitted that the finding of fact returned by the learned Labour Court by taking into consideration oral and documentary evidence adduced by both the sides need not be disturbed at this distance of time, particularly when plausible explanation is lacking with regard to cause for the delay in approaching this Court in instituting writ proceeding. Inordinate delay in filing the writ petition being not sufficiently explained, the petitioner does not deserve benevolence.

W.P.(C) No.9304 of 2015 Observation:

6. Having heard Sri Sidhartha Mishra, Advocate for the petitioner, Sri Sanjay Rath, Additional Standing Counsel for the opposite party No.1 and Sri Sarada Prasanna Sarangi, Advocate for the opposite party No.2, this Court finds that the learned Labour Court having afforded reasonable opportunity to the parties came to the conclusion that the punishment as handed out by the Management of M/s. Tata Sponge Iron Ltd. is not disproportionate. Misconduct of the petitioner-driver is supported by evidence that he, while being on duty, refused to shift patient to the Hospital at Joda. On the facts and in the circumstances of the case, the termination of services of the petitioner has correctly been held by the Labour Court to be just and proper.

7. It is transpired from reading of the Award dated 04.06.2007 passed by the learned Labour Court, Sambalpur that the defiant attitude of the petitioner is not only amounted to "misconduct", but also he was indisciplined and found to be insincere. The conclusion of the learned Labour Court in sustaining the decision of the Management of M/s. Tata Sponge Iron Ltd. does not suffer legal infirmity. There is little scope for this writ Court to intermeddle the fact-finding of the competent Court after discussing evidence with reference to charges framed against the petitioner.

W.P.(C) No.9304 of 2015 Entertainment of writ petition on the objection of delay and laches:

8. The counsel for the opposite parties are correct in raising objection for entertainment of writ petition to show indulgence in the matter since the petitioner failed to apprise this Court with regard to inordinate delay in filing writ petition. Whereas the Award was passed on 04.06.2007, the writ petition has been filed on 11.05.2015. The cause shown by the petitioner that "financial instability" led to the delay in filing writ petition does not appeal to conscience of Court to interfere with the Award. No evidence is placed on record by the petitioner to justify such a contention.

8.1. It may be noted that writs are not a device to restart proceedings after unreasonable and inordinate delay. It is often seen that litigants, who sleep over their right of appeal/revision or any other statutory mode for redressal, decide at a much later time after unreasonable and inordinate time to re-agitate the matter especially against the Government or its functionalities. Such a device seldom requires to be attended to. Invocation of the extraordinary jurisdiction of the High Court by filing writ petition under Article 226 of the Constitution of India craving for direction for consideration of fresh plea or evidence with a hope to re- enliven the proceeding, which had lapsed with the passage of time, is liable to be deprecated. The Hon'ble Supreme Court as also this Court has consistently held that indolent

W.P.(C) No.9304 of 2015 person is not to be protected and delay and laches on part of the litigant disentitle him to any relief.

8.2. In K.V. Raja Lakshmiah Vrs. State of Mysore, AIR 1967 SC 973, the Apex Court which held that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic and that the Court may decline to intervene and grant relief in exercise of its writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The Court observed that if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also causing injustice to the third parties.

8.3. Regard may be had to Northern Indian Glass Industries Vrs.

Jaswant Singh and Others, 2002 Supp (3) SCR 534, wherein the Hon'ble Court cautioned that the High Court cannot ignore the delay and latches in approaching the writ court and there must be satisfactory explanation by the petitioner as to how he could not come to the court well in time.

8.4. It is also well-settled principle of law that 'delay defeats equity'. The principle underlying this rule is that the one who is not vigilant and diligent and does not seek intervention of the Court within reasonable time from the date of accrual of cause of action or alleged violation of constitutional, legal or other right is not entitled to relief under Article 226 of the Constitution. Another reason for the

W.P.(C) No.9304 of 2015 High Court's refusal to entertain belated claim is that during the intervening period rights of third parties may have crystallized and it will be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and there is no cogent explanation for the delay.

8.5. In Shankara Co-op. Housing Society Ltd. Vrs. M. Prabhakar and Others, (2011) 5 SCC 607, the Supreme Court reiterated settled position of law and affirmed the well-established criteria which has to be considered before exercise of discretion under Article 226 of the Constitution of India. The relevant portion is extracted herein below:

"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are:

1. 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;

2. 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;

W.P.(C) No.9304 of 2015

3. the satisfactory way of explaining delay in making an application under Article 226 is for the Petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the Petitioner chooses to believe in regard to the remedy;

4. no hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts;

5. that representations would not be adequate explanation to take care of the delay."

8.6. In C. Jacob Vrs. Director of Geology and Another, (2008) 10 SCC 115, it has been observed thus:

"6. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters.

Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without

W.P.(C) No.9304 of 2015 examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'.

If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."

8.7. At this juncture, it is useful to refer to Ex. Capt. Harish Uppal Vrs. Union of India, 1994 Supp. (2) SCC 195, wherein the following was the observation:

"8. The petitioner sought to contend that because of laches on his part, no third party rights have intervened and that by granting relief to the petitioner no other person's rights are going to be affected. He also cited certain decisions to that effect. This plea ignores the fact that the said consideration is only one of the considerations which the court will take into

W.P.(C) No.9304 of 2015 account while determining whether a writ petition suffers from laches. It is not the only consideration. It is a well-settled policy of law that the parties should pursue their rights and remedies promptly and not sleep over their rights. That is the whole policy behind the Limitation Act and other rules of limitation. If they choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere in its discretionary jurisdiction under Article 226 of Constitution of India-- and that is what precisely the Delhi-High Court has none. We cannot say that the High Court was not entitled to say so in its discretion."

8.8. The Hon'ble Supreme Court in the case of State of Maharashtra Vrs. Digambar, (1995) 4 SCC 683 laid down as follows:

"14. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a Welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the Welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than

W.P.(C) No.9304 of 2015 in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State."

8.9. In Chennai Metropolitan Water Supply and Sewerage Board Vrs. T.T. Murali Babu reported in (2014) 4 SCC 108, the Hon'ble Supreme Court held as follows:

"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to

W.P.(C) No.9304 of 2015 weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant-- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."

8.10. The Madras High Court in the case of S. Vaidhyanathan Vrs.

Government of Tamil Nadu, 2018 SCC OnLine Mad 11463, held as under:

"13. Though reasonable time is not prescribed in the rules framed under Article 229 of the Constitution of India, the words "reasonable time", as explained in Veerayeeammal Vrs. Seeniammal reported in (2002) 1 SCC 134, at Paragraph 13, is extracted hereunder: "13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the

W.P.(C) No.9304 of 2015 individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean:

"A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly"; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."

14. There is an inordinate delay and laches on the part of the appellant. What is laches is as follows:

"Laches or reasonable time are not defined under any Statute or Rules. "Latches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the latches in one case might not constitute in another. The latches to non-suit, an aggrieved person person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case."

W.P.(C) No.9304 of 2015

15. Statement of law has also been summarized in Halsbury's Laws of England, Para 911, pg. 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 afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches." ..."

8.11. Pertinent in the present context to take note of the following observation of the Allahabad High Court vide Judgment dated 18th March, 2021 rendered in Ganga Sahay and 2 Others Vrs. Deputy Director of Consolidation and 14 Others, WRIT - B No. 302 of 2021:

"13. Law has long set its face against delay in approaching the court. The courts have consistently declined to condone the delay and denied relief to litigants who are guilty of laches. Litigants who are in long slumber and not vigilant about their rights are discouraged by the courts. Belated claims are rejected

W.P.(C) No.9304 of 2015 at the threshold. Rip Van Winkles have a place in literature, but not in law.

14. All this is done on the foot of the rule of delay and laches. Statutes of limitation are ordained by the legislature, rule of laches was evolved by the courts. Sources of the law differ but the purpose is congruent. Statutes of limitation and the law of delay and laches are rules of repose.

15. The rule of laches and delay is founded on sound policy and is supported by good authority. The rule of laches and delay is employed by the courts as a tool for efficient administration of justice and a bulwark against abuse of process of courts.

16. Some elements of public policy and realities of administration of justice may now be considered.

17. While indolent litigants revel in inactivity, the cycle of life moves on. New realities come into existence. Oblivious to the claims of the litigants, parties order their lives and institutions their affairs to the new realities. In case claims filed after inordinate delay are entertained by courts, lives and affairs of such individuals and institutions would be in a disarray for no fault of theirs. Their lives and affairs would be clouded with uncertainty and they would face prospects of long and fruitless litigation.

18. The delay would entrench independent third party rights, which cannot be dislodged. The deposit of subsequent events obscures the original claim and alters the cause itself. The refusal to permit agitation of stale claims is based on the principle of acquiescence. In certain situations, the party by its failure to raise the claim in time waives its right to assert it after long delay.

19. The rule of delay and laches by preventing the assertion of belated claims puts to final rest long dormant claims. This policy of litigative repose,

W.P.(C) No.9304 of 2015 creates certainty in legal relations and curtails fruitless litigation. It ensures that the administration of justice is not clogged by pointless litigation."

8.12. Given the position of law as discussed above on the question of exercise of discretion under Article 226/227 of the Constitution of India, it is difficult to ignore the delay and laches on part of the instant petitioner, as it is apparent on record that there is no satisfactory explanation proffered in the writ petition. The explanation for laches is self-serving and lacks credibility. Therefore, the writ petition is barred by delay and laches and is not liable to be entertained.

Conclusion:

9. For the reasons stated above, the writ petition is bound to be dismissed both on the merits as also on the ground of delay. Accordingly, the writ petition is dismissed. However, parties are left to bear respective costs.

                                                   (MURAHARI SRI RAMAN)
                                                         JUDGE
DR. B.R. SARANGI, J.           I agree.


                                                       (DR. B.R. SARANGI)
                                                            JUDGE




         Orissa High Court, Cuttack
         The 22nd March, 2023, Laxmikant


         W.P.(C) No.9304 of 2015