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2024 DIGILAW 1120 (GUJ)

Jayesh L. Patel v. State Of Gujarat

2024-05-03

PRANAV TRIVEDI

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JUDGMENT : 1. The pertinent question in the present writ petition before this Court is whether the petitioners should be non-suited on the ground of delay and latches itself, as they approach the Court belatedly after sleeping over their right for a considerable period of time. 2. The brief facts are as follows:- 2.1. The petitioners are serving with respondent No.3 - Mahatma Gandhi Labour Institute, which is an autonomous body of the Government of Gujarat registered under the Societies Registration Act, 1860. The Mahatma Gandhi Labour Institute is cent-percent grant-in-aid institute getting grants from the Labour & Employment Department of the Government of Gujarat. Its administrative head is a senior IAS officer deputed by the State of Gujarat. 2.2. It was the case of the petitioners that the rules, regulations and pay-scales applicable to the employees of the State of Gujarat are applicable to Mahatma Gandhi Labour Institute. Accordingly, they have received pay-scales as per 7th Pay Commission. As far as their Pension Scheme is concerned, the Employees’ Pension Scheme, 1995 run by the Employees’ Provident Fund Organization governs the employees of the Mahatma Gandhi Labour Institute. 2.3. It was further case of the petitioners that they should be given the same pension and under the same rules and regulations, which governed the employees of Government of Gujarat. To remove this anomaly, a detailed proposal was made to the Principal Secretary, Labour & Employment Department, Government of Gujarat seeking to convert the Pension Scheme. The proposal was turned down by the State. Again the matter was persuaded by the Mahatma Gandhi Labour Institute with a request to re-consider the proposal. The Government of Gujarat, by way of a communication dated 21.04.2003, asked for certain details such as the proposed total financial burden etc. The State Government declined the proposal for the Pension Scheme vide communication dated 20.09.2003. This communication is impugned in the present petition filed in the year 2018. 3. Heard learned advocates appearing for the respective parties. 4. Mrs. Krishna G. Rawal, learned advocate appearing for the petitioners has submitted that the employees of the institute have been carrying out detailed correspondence since 1988 to apply the Pension Scheme of the Government Employees to the institute. Even the Director of the institute has made the recommendation of applicability of such Pension Scheme. 4. Mrs. Krishna G. Rawal, learned advocate appearing for the petitioners has submitted that the employees of the institute have been carrying out detailed correspondence since 1988 to apply the Pension Scheme of the Government Employees to the institute. Even the Director of the institute has made the recommendation of applicability of such Pension Scheme. It was further submitted that similarly situated institutes are being approved of the Pension Scheme since in the year 1997. It was brought to the notice of the State Authority in the year 2002. However, by way of impugned communication dated 20.09.2003 authorities had rejected the representation of the institute. It was further submitted that though the representation was turned down vide impugned communication dated 02.09.2003, the petitioners had never received such communication. In wake of such submission, she has requested to allow the petition and grant Pension Scheme which is applicable to the employees of the State Government viz a viz the petitioners who were employees of the institute. Mrs. Rawal, learned advocate has relied on an order passed by this Court in the case of Samaj Suraksha Khata Manya Swaichhik Sanstha Employees versus State of Gujarat and others passed in Special Civil Applications No. 2321/2004 and 10209/2014. 5. Per contra, Ms. Roshani Patel, learned Assistant Government Pleader has submitted that the petition should be dismissed on the ground of delay and latches itself. Relying on the affidavit-in-reply filed by the State Authority, it has been submitted that the preliminary objection raised against the petition is that the petitioners have made a representation way back in the year 2003 and the same was rejected by way of impugned communication dated 20.09.2003. The petitioners had never challenged the same and accepted it. Now after a span of 15 years, they cannot get out of slumber and challenge the communication. Therefore, it was submitted that this Court may not invoke extraordinary jurisdiction under Article 226 of the Constitution of India and dismissed the petition on the ground of delay and latches itself. 6. Having heard learned advocates appearing on behalf of both the parties, the primary issue for consideration before this Court is whether the petitioners ought to have been non-suited on the ground of delay and latches itself. If the facts are looked into, the representation was made in the year 2002 and 2003. 6. Having heard learned advocates appearing on behalf of both the parties, the primary issue for consideration before this Court is whether the petitioners ought to have been non-suited on the ground of delay and latches itself. If the facts are looked into, the representation was made in the year 2002 and 2003. By way of impugned communication dated 20.09.2003, the prayers as prayed by the petitioners were rejected. There is nothing on record to show that petitioners had adopted any method to challenge the refusal given to their representation. Meaning thereby, they had accepted that the Employees’ Pension Scheme which governed the pension to be given to the petitioners, will continue to govern them. There is no reason attributed that on what basis they have sat tight for 15 years before filing the petition in the year 2018. One of the contentions raised by Mrs. Krishna Rawal is that the petitioners had never received refusal of the representation. Unfortunately, such contention cannot be countenanced. The reason being that while preferring the petition in the year 2018, in the memo of petition, the petitioners have assigned no reasons as to why they have challenged the refusal communication dated 20.09.2003 in the year 2008 when they were well aware about the refusal in the year 2003 itself. There is not a single averment in the petition with regards to non receipt of communication dated 20.09.2003. Therefore, the oral submission made by Mrs. Rawal, learned advocate for the petitioners cannot be accepted. Thus, the fact remains that the petitioners had slept over their rights for a considerable period of time and thereafter got up from deep slumber to pray for extraordinary relief. In catena of decisions, it has been held that if there is laxity on the part of the petitioners to assert their right and if the petitioners had allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action, then the petitioners would definitely be non-suited on the ground of delay and latches itself. 7. To understand the proposition of law, the Hon’ble Apex Court in a recent decision in the case of Mrinmoy Maity versus Chhanda Koley and others passed in Civil Appeal No.5027 of 2024 dated 18.04.2024 held as under:- “10. The discretion to be exercised would be with care and caution. 7. To understand the proposition of law, the Hon’ble Apex Court in a recent decision in the case of Mrinmoy Maity versus Chhanda Koley and others passed in Civil Appeal No.5027 of 2024 dated 18.04.2024 held as under:- “10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled. 11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court” 8. The Hon’ble Apex Court has laid down a dicta in the case of Karnataka Power Corporation Ltd. and another v. K. Thangappan and another, (2006) 4 SCC 322 whereunder it has been held that thereunder:- “6. The Hon’ble Apex Court has laid down a dicta in the case of Karnataka Power Corporation Ltd. and another v. K. Thangappan and another, (2006) 4 SCC 322 whereunder it has been held that thereunder:- “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 Prashad v. Chief Controller of Imports and Exports [ (1969) 1 SCC 185 : AIR 1970 SC 769 ]. 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 Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [ AIR 1967 SC 1450 ] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [ (1969) 1 SCR 808 : AIR 1969 SC 329 ]. Sir Barnes had stated: “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 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. 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 it 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 to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India [ (1970) 1 SCC 84 : AIR 1970 SC 470 ] 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 Jaiswal [ (1986) 4 SCC 566 : AIR 1987 SC 251 ] 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. 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.” 9. The Hon’ble Apex Court in the case of Tridip Kumar Dingal and others v. State of W.B and others, (2009) 1 SCC 768 held as under:- “56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches. 57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [ AIR 1964 SC 1006 : (1964) 6 SCR 261 ], Moon Mills Ltd. v. Industrial Court [ AIR 1967 SC 1450 ] and Bhoop Singh v. Union of India [ (1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969 ]). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [ (1969) 1 SCC 110 ], Durga Prashad v. Chief Controller of Imports & Exports [ (1969) 1 SCC 185 ] and Rabindranath Bose v. Union of India [ (1970) 1 SCC 84 ]). 58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.” 10. Subsequently, the Hon’ble Apex Court in the case of Chennai Metropolitan Water Supply & Sewerage Board and others v. T.T. Murali Babu, (2014) 4 SCC 108 has held that:- “16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to 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.” 11. 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.” 11. Therefore, in view of the law enunciated, the facts of the present case would reflect that the petitioners were well aware about the rejection of their representation in the year 2003 and thereafter, preferred a petition in the year 2018 and therefore, the writ petition suffers from delay and latches and the present petition is liable to be dismissed on the sole ground itself. Further, the reliance placed by Mrs. Rawal, learned advocate for the petitioners in the case of Samaj Suraksha Khata Manya Swaichhik Sanstha Employees (supra) would not be applicable to the facts of the present case. In the case relied by Mrs. Rawal, learned advocate for the petitioners, the factual situation was that the employees of the institute were not at all getting pension. In the present case, the employees are governed by the Employees’ Pension Scheme and they have prayed to grant the pension which is applicable to the government employees. Therefore, the case as relied by Mrs. Rawal, learned advocate cannot be equated to the facts of the present case. However, when the petitioners are found to be guilty of delay and latches, the petition is liable to be dismissed on this sole ground itself. 12. In view of this, the present writ petition being devoid of merits is hereby dismissed with no order as to costs. Rule is discharged.