Telangana High Court

The Regional Manager vs Syed Yousuf on 13 December, 2021

Bench: Satish Chandra Sharma, N.Tukaramji

     THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                        AND
                  THE HON'BLE SRI JUSTICE N. TUKARAMJI


             WRIT APPEAL Nos.1660 of 2018 & 593 of 2016

COMMON JUDGMENT:              (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




          Regard being had to the controversy involved in the

aforesaid cases, they were heard together and are being

decided by a common order.

          The facts of W.A.No.1660 of 2018 are reproduced as

under:

          The present W.A.No.1660 of 2018 is arising out of order

dated 17.09.2018 passed in W.P.No.9861 of 2007 by the

learned Single Judge.

          The undisputed facts reveal that a writ petition was

preferred by the respondent/workman being aggrieved by

order dated 03.02.1990 confirmed in review by order dated

16.09.1992 by which a punishment of stoppage of annual

increment for a period of two years with cumulative effect was

inflected upon the employee. The learned Single Judge has

allowed the writ petition keeping in view the judgment

delivered in the case of Kulwant Singh Gill vs. State of

Punjab1.

Learned counsel appearing for the

appellant/Corporation has argued before this Court that the

employee in question has approached this Court after a lapse

1991 Supp (1) SCC 504

of 17 years from the date of order of punishment and

therefore in the light of the judgment delivered by the Full

Bench of this Court in the case of P.V. Narayana vs.

APSRTC, Hyderabad and others2, the order passed by the

learned Single Judge deserves to be set aside.

This Court has carefully gone through the judgment

delivered by the Full Bench. Before the Full Bench, the

employees came up before this Court has relied upon the

judgment delivered in the case of Kulwant Singh (1 supra)

and the Full Bench in paragraphs 71 to 77 has held as under:

"71. On the basis of the decisions of the Supreme Court referred to above, the relevant considerations that may be taken into account in determining the issue of delay and laches may be summarized thus:

(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

2013 SCC Online AP 729

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.

72. An analysis of the case law discussed above would amply make it clear that issue of a writ of a mandamus or certiorari is largely a matter of sound discretion and will not be granted if there is negligence or omission on the part of the person to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. Therefore, burden lies on the workman who has to establish that in spite of his best efforts and diligence he was prevented from approaching the authority within the period of limitation provided for or the writ Court within a reasonable period of time. If the workman is not able to satisfactorily explain with cogent reasons for the delay he is not entitled to seek for condonation of the delay. It is true that the punishment imposed cannot be sustained in law because of the illegality crept in it in not conducting a prior enquiry. But, still the workman is under a statutory obligation to challenge the same within the time provided by the statutory rules or regulations or within a reasonable period of time before the writ Court. if delay of 5 to 18 years is condoned, for no reason or fault on the part of the authority, the proceedings which had attained finality are to be set aside. Setting aside of such order at a belated stage and allowing of a stale claim, may, as rightly held by the Division Bench in Esa Ali's case (supra), inspite the workman to seek for consequential benefits of promotion as well, in which event, the rights of the third parties would adversely be affected for no fault of theirs. A workman who is tardy and not diligent for years in availing a statutory remedy or in approaching the Court of law, in our view, cannot be encouraged or permitted to contend that in view of the decision of the Supreme Court the punishment cannot be sustained in law, therefore, delay to any extent is to be condoned automatically in exercise of the power conferred on the appellate or revisional authorities or by the writ Courts in exercise of the discretionary powers under Article 226 of the Constitution of India. Courts can come to the aid of a person who is diligent and vigilant but unable to approach the authority or Court of law for redressal of his grievance in spite of his best efforts and reasons beyond his control but not to a person who is tardy and negligent or slept over the matter in availing the statutory or legal remedies.

73. No doubt in the present cases the punishment awarded cannot be sustained in law in view of the law laid down by the Supreme Court in Kulwant Singh Gill's case (supra) and in the light of the Regulations, but, a specific period having been prescribed in the Regulations of the

Corporation, as stated earlier, the same need to be adhered to. The proviso under Regulation 23 empowers the appellate authority to entertain an appeal even after expiry of the period of limitation provided if it is satisfied that the appellant had sufficient cause for not submitting the appeal in time. A similar power may also be exercised under Regulation 29. If the authority is not satisfied with the explanation offered by the workman in challenging the orders of punishment, this Court, in exercise of the jurisdiction under Article 226, cannot interfere unless the conclusion arrived at by the authority that the explanation offered by the workman is not justified or germane or no prudent person would have come to such a conclusion. In appropriate cases where the appeal or revision is filed within a reasonable period of delay, it is always open to the appellate or revisional authority to condone the delay on valid explanation put forth by the workman in not approaching the authorities within the time specified, in which event, the writ Court should not interfere with the order. In our opinion, when Regulations provided a period of two months for filing an appeal and six months for a revision, delay of 5 to 18 years in approaching the authority would certainly be fatal to the case of a workman unless properly explained with cogent reasons.

74. It is true that in some cases where the delay is five years or so the Supreme Court inclined to condone the delay but under different circumstances when the fundamental rights are violated or where the delay is not directly attributable to the party seeking the relief or where the rights of the third parties are not intervened or in matters where seniority of employees is not finalized, the Court, would be justified to grant the relief; but not as a general rule of practice. Therefore, in our considered opinion, Kulwant Singh Gill's case (supra), does not confer or clothe an automatic right with the employee to challenge the order of the authority at any time or whenever he wishes. The principles laid down by the Apex Court governing the condonation of delay will certainly and equally have application even in cases where challenge is made to an order imposing the punishment contrary to the Regulations or the ratio in Kulwant Singh Gill's case (supra), where the employee had slept over the matter and had not chosen to challenge it within a reasonable period of time. It may also be noticed that in service matters, the Courts have applied the rule of delay with greater rigor.

75. We, therefore, agree with the view taken by the Division Bench in Sd. Esa Ali's case (supra).

76. We answer the reference accordingly.

77. As already noted, in some cases, it was urged that no orders are passed on the appeals or revisions filed by the petitioners. In the light of the conclusions drawn above, the writ appeal and the respective writ petitions are to be disposed of by the appropriate Benches. Registry may place the matters before the appropriate Benches for disposal in accordance with law and in the light o f the principles laid down in this judgment."

The delay of 5 to 18 years was held to be inordinate

delay in preferring a writ petition under Article 226 of the

Constitution of India.

In the considered opinion of this Court, on the issue of

delay and laches, as has been considered by the Full Bench,

as there was certainly an inordinate delay of 17 years in

approaching this Court, the order passed by the learned

Single Judge is hereby set aside.

Accordingly, the writ appeals are allowed.

This Bench in some of the cases has taken a contrary

view on the issue of delay and laches, but the fact remains

that the judgment of the Full Bench has been brought to our