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CASE NO.: Appeal (civil)  3726 of 2000

PETITIONER: Karnataka Power Corporation     Ltd Through its Chairman & Managing Director and Anr

RESPONDENT: K. Thangappan & Anr

DATE OF JUDGMENT: 04/04/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this appeal is to the legality of the judgment  rendered by a Division Bench of the Karnataka High Court  upholding the view of the learned Single Judge directing the  appellants to appoint respondent No.1 (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.1 was working as a nominal muster roll  workman with the appellant No.1- 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, 1947 (in short the ’Act’). Clause 4 of  the Settlement which is relevant reads as follows:

"Casual Labour- Casual workmen who have  worked for a period of not less than 240 days  during a period of 12 calendar months are  agreed to be brought on monthly  establishment from the first of the following  month effective from 1.10.1978, subject to  availability of vacancies. The surplus  workmen, if any, will be kept on the waiting  list and appointed as and when vacancies  occur. In the case of workmen who are not  provided with work during monsoon period,  the 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.1-workman addressed a letter to 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.1 was not working with the Corporation at the time of  confirmation of 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 Karnataka High Court praying,  inter- alia, for a direction to consider the writ petitioner for the

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post of Ist Class Mason. Corporation filed its reply pointing out  that the writ petition was liable to be dismissed on the  grounds of delay and laches. 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  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, as he was agitating the matter. The Writ Appeal  filed by the Corporation was dismissed on the ground that  Clause (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.                   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 employment. 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-called earlier  representation, if any.  This itself shows that there was no  substance in the plea of respondent No.1 that he had been  agitating the matter. In any event, making a representation is  not sufficient for filing a belated writ petition. In response,  learned counsel for respondent No.1-workman submitted that  the High Court had proceeded on equitable premises and no  interference was called for.  

The factual position as noted above clearly shows that for  nearly 2 decades the respondent No.1-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 have  been made in 1982 and/or 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.   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 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. 221 at page 239) was approved by this Court in  Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450) and  Maharashtra State Road Transport Corporation v. Balwant  Regular Motor Service (AIR 1969 SC 329). Sir Barnes had  stated:

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"Now, the doctrine of laches in Courts of  Equity is not an 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 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, 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 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, a fortiori, to  Article 226. It was observed in R.N. Bose v. Union of India (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.  

It was stated in State 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, 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. 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. Raja

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Lakshmiah v. State of Mysore (AIR 1967 SC 973). This was re- iterated 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 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 of repeated  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 Kumar (AIR 1976 SC  1639 also).   

Additionally, whether Clause (4) of the Settlement was  applicable to respondent No.1-workman could not have been  adjudicated in a writ petition.  In fact, the High Court has not  even given any finding in that regard. As has been observed by  this Court in ONGC Ltd. and Anr. v. Shyamal Chandra  Bhowmik (2006 (1) SCC 337) in cases of this nature a writ  petition is not the proper remedy.  

Looked at from any angle, respondent No.1-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.