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KARNATAKA POWER CORPORATION LIMITED AND ANR.

K. THANGAPPAN AND ANR.

APRIL 4, 2006

[ARJJIT PASAYAT AND TARUN CHATTERJEE, JJ.]

Constitution of India, 1950-Article 226-Writ jurisdiction-Exercise of, in case of delay!/ aches on part of petitioner-Held: In case of inordinate delay on the part of petitione1; High Court not to intervene and grant relief in exercise of its writ jurisdiction-Delay and !aches.

In January, 1979, appellant-Corporation and workmen arrived at a settlement scheme for confirmation of nominal muster roll workmen.

Respondent-workman did not report for duty since February, 1979 and accordingly his name was removed from nominal muster roll. In October, 1997, he made representations for providing employment. Appellant refused D to consider his request as the matter was 20 years old. Thereafter respondent filed writ petition praying for direction to consider him for employment which was allowed by Single Judge. Writ appeal filed by appellant was dismissed on the ground that settlement clearly provided that as and when vacancy would arise, the workman would be appointed. Hence the present appeal.

Allowing the appeal, the Court

HELD: I. For nearly 2 decades respondent No.I-workman had remained silent. Even in the representations made in 1997 and 1998 there was no reference to the representations claimed to have been made in 1982 and/or F

1989. Even if that would have been made there was considerable delay even in making the representations. There is no dispute that mere making of representations cannot justify a belated approach. 1786-Cj

2. Delay or !aches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article G 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.

783 H

SUPRE~E COURT REPORTS

[2006] 3 S.C.R.

A Even where fundamental right is involved the matter is still within the discretion of the Court. [786-D, El

Durga Prasad v. Chief Controller of Imports and Exports, AIR (1970) SC 769 and State of Orissu v. A run Kumar, AIR (1976) SC 1639, relied on.

B Lindsay Pe1role11111 Compuny v. Prosper Armstrong Hurd etc., (1874) 5 P.C. 221; Moon Mills Ltd. v. Industrial Courts, AIR (1967) SC 1450; Muhurm; htru Stu IL' Roud Trunsport Corporation v. Ba!ll'anl Regular .lvfotor Service, AIR (1969) SC 329; R.N. Bose v. Union of India, AIR (1970) SC 470; State of Jf.P. v. Nandlal, AIR (1987) SC 251; K. V. Raja lakshmiah v.

C State ufMysore, AIR (1967) SC 973; State of Orissu v. P. Samantaraj, AIR

(1976) SC 1617 and ONCJC ltd. and Anr. v. Shyama/ Chandra Bhowmik, [2006[ 1 sec 337, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3726/2006.

D From the Judgment and Order dated 29.11. 1999 of the Karnataka High Court at Bangalore in W.A. No. 684711999.

S. Ganesh, Pratap Venugopal, M/s. Jhuma Bose, E. Venu Kumar and Mis. K.J. John & Co. for the Appellants.

E Bharat Sangal, San jay R. Hegde, Anil K. Mishra and A. Rohen Singh for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. Challenge in this appeal is to the legailty of the judgment rendered by a Division Bench of the Karnataka High Court upholding F the view of the learned Single Judge directing the appellants to appoint respondent No. l (hereinafter referred to as the 'workman') in an appropriate vacancy in terms of Clause 4 of the Settlement dated 29.1.1979.

Factual position in a nutshell is as under:

Respondent No. I was working as a nominal muster roll workman with the appellant No. I- Karnataka Power Corporation Ltd. (In short "Corporation").

On 29.1.1979 a settlement was arrived at in terms of Section 12(3) of the Industrial Disputes Act. 194 7 (in short the 'Act'). Clause 4 of the Settlement which is relevant reads as follows:

"Cusuul labour:~Casual workmen who have worked for a period of

KARNATAKA POWER CORPORATION LIMITEDv. K. THANGAPPAN[PASAYAT, J.J 785

not less than 240 days during a period of 12 calendar months are A agreed to be brought on monthly establishment from the first of the following month effective from I. I 0.1978, subject to availability of vacancies. The surplus workmen, if any, will be kept on the waiting list and appointed as and when vacancies occur. Jn the case of workmen who are not provided with work during monsoon period, the B number of days worked in two consecutive seasons will be counted to determine their eligibility".

According to the appellants, the respondent did not report for duty since February, 1979 and accordingly his name was removed from the nominal muster roll. In October 1997 respondent No. I-workman addressed a letter to C the Corporation and sought employment as a Mason. The request was repeated on 17.1.1998 and thereafter in June, 1998. In reply, the appellant-Corporation stated that since respondent No. I was not working with the Corporation at the time of confirmation of the other nominal muster roll employees and the matter was 20 years old, it would not be possible to consider the request for providing employment. On 18.8.1998 a writ application was filed before the D Karnataka High Court praying inter-alia, for direction to consider the writ petitioner for the post of !st Class Mason. Corporation filed its reply pointing out that the writ petition was liable to be dismissed on the grounds of delay and !aches. However, by order dated 18.8.1999 the writ petition was allowed by a learned Single Judge holding that it would be too much to expect a writ E petitioner to retain copies of the communications that he had sent to the Corporation. Since the alleged acknowledgments produced had shown that some officers of the Corporation received the communications it would be desirable to accept the stand that representations were made and it would not be correct to say that the writ petitioner had slept over the matter for 18 years, F as he was agitating the matter. The Writ Appeal filed by the Corporation was dismissed on the ground that Clauses (4) of the Settlement clearly provided that as and when vacancy would arise, the workman would be appointed.

That being the position, there was no scope for interference with the order of the learned Single Judge.

G Learned counsel for the appellant-Corporation and its functionaries submitted that there was no evidence produced by the respondent to show that in 1982 and/or 1989 he approached the Corporation for employm<!nt. Even if it is accepted for the sake of argument that he sent representations it is clear that one was filed after three years and the other after 10 years. Significantly, in the representations sent in 1997 and 1998 there was no reference to so- H

A called earlier representation, if any. This itself shows that there was no substance in the plea of respondent No. I that he had been agitating the matter. In any event, making a representation is not sufficient for tiling a belated writ petition. In response, learned counsel for respondent No.!- workman submitted that the High Court had proceeded on equitable premises B and no interference was called for.

The factual position as noted above clearly shows that for nearly 2 decades the respondent No. I-workman had remained silent. As rightly pointed out by learned counsel for the appellants even in the representations made in 1997 and 1998 there was no reference to the representations claimed to C have been made in 1982 and/or 1989. Even if that would have been made, there was considerable delay l:ven in making the representations. There is no dispute that mere making of representations cannot justify a belated approach.

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 D 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 pan 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 E the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports, AIR ( 1970) SC 769. Of course, the discretion has to be exercised judicially and reasonably.

What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. (1874) (5) P.C. 22 l at F page 239 was approved by this Court in Moons Mills Ltd. v. Industrial Courts.

AIR (1967) SC 1450 and Maharashtra State Road Transport Corporation. v.

Ba/want Regular Motor Service. AIR (1969) SC 329. Sir Barnes had stated:

"'Now, the doctrine of !aches in Courts of Equity is not arbitrary or 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 situtation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, H in either of these cases, lapse of time and delay are most material. But

KARNATAKA POWER CORPORATION LIMITED"· K. THANGAPPAN [PASA VAT, J.] 787

in every case, if an argument against relief which otherwise would be A just, if 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 B party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution.

It is apparent that what has been stated as regards that Article would apply, C a fortiori, to Article 226. It was observed in R.N. Bose v. Union of India, AIR ( 1970) SC 4 70 that not 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 D inordinate delay.

It was stated in Stale of M.P. v. Nandlal, 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, E 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 F 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.

It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K. V. Ra1a Lakshmiah v. State of Mysore, AIR (1967) SC 973.

This was reiterated in R.N. Bose's case (supra) by stating that there is a limit

to the time which can be considered reasonable for making representations H

A and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. P. Samantaraj, AIR ( 1976) SC 1617 making ofrepeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun B Kumar. AIR(l976)SC 1639also).

Additionally, whether Clause (4) of the Settlement was applicable to respondent No. I-workman could not have been adjudicated in a writ petition.

In fact the High Court has not even given any finding in the regard. As has been observed by this Court in ONGC Ltd. and Anr. v. Shyama/ Chandra C Bhowmik, [:!006] I SCC 337 in cases of this nature a writ petition is not the proper remedy.

Looked at from any angle, respondent No. I-workman was not entitled to any relief. The orders of the learned Single Judge and the Division Bench cannot be maintained and are set aside.

The appeal is allowed but in the circumstances with no order as to costs.

D.G.

Appeal allowed.