Chairman,
U.P.Jal Nigam & Anr Vs. Jaswant Singh & Anr [2006] Insc 793 (10 November 2006)
Dr.
Ar. Lakshmanan & A.K.Mathur
[Arising
out of S.L.P.(c) No.6207 of 2006] WITH
CIVIL APPEAL NOs.4791-4887 of 2006 [ Arising out of S.L.P. (c) Nos. 6296, 6380,
6382, 6384, 6386, 6388, 6389, 6390, 6391, 6392, 6393, 6395, 6396, 6397, 6398,
6400, 6401, 6403, 6404, 6405, 6406, 6408, 6409, 6415, 6418, 6431, 6432, 6433,
6437, 6445,6448, 6475, 6864, 6914, 7357, 7394, 8976, 9265, 11828, 9373,
10089,5208, 5321, 5322, 5339, 5340, 5343,5360, 5369, 5373,5379,5383,7122,12975,
9968, 9980, 11830, 9998, 10003, 10072, 12000, 12003, 12001, 11952, 11953,
12892, 12915, 14354, 12917, 12918, 12970, 14350, 14355, 14349, 13225, 14377 ,
14348, 14352, 14353, 14816, 14817, 8587, 8619, 8633, 8676, 8726, 8727, 8733,
8737, 8752, 8753, 8801, 8810, 11870, 11871, 11866 & 11860 of 2006] A.K.
MATHUR, J.
Leave
granted.
All
this batch of appeals involve similar questions of law and fact, therefore,
they are disposed of by this common order.
All
these respondents are the employees of the Uttar Pradesh Jal Nigam (
hereinafter to be referred to as 'the Nigam') and they were retired on
attaining the age of superannuation at 58 years.
Some
of them filed writ petitions in the High Court of Judicature at Allahabad
challenging the retirement of the employees of the Nigam on attaining the age
of 58 years whereas the State Government employees were allowed to continue up
to the age of 60 years and therefore, they should also be allowed to continue
up to the age of 60 years. The writ petitions filed before the High Court
failed and against that Civil Appeal No.7840 of 2002 and batch of other appeals
were filed before this Court. This Court disposed of the case of Harwindra
Kumar along with other appeals and held that employees of Nigam are entitled to
continue up to 60 years. This has been reported in (2005) 13 SCC 300. The
operative portion of the said judgment reads as under:
"10.
For the foregoing reasons, we are of the view that so long as Regulation 31 of
the Regulations is not amended, 60 years which is the age of superannuation of
government servants employed under the State of Uttar Pradesh shall be applicable to the employees of the Nigam. However,
it would be open to the Nigam with the previous approval of the State
Government to make suitable amendment in Regulation 31 and alter the service
conditions of employees of the Nigam, including their age of superannuation. It
is needless to say that if it is so done, the same shall be prospective.
11.
For the foregoing reasons, the appeals as well as writ petitions are allowed,
orders passed by the High Court dismissing the writ petitions as well as those
by the Nigam directing that the appellants of the civil appeals and the
petitioners of the writ petitions would superannuate upon completion of the age
of 58 years are set aside and it is directed that in case the employees have
been allowed to continue up to the age of 60 years by virtue of some interim
order, no recovery shall be made from them but in case, however, they have not
been allowed to continue after completing the age of 58 years by virtue of
erroneous decision taken by the Nigam for no fault of theirs, they would be
entitled to payment of salary for the remaining period up to the age of 60
years which must be paid to them within a period of three months from the date
of receipt of copy of this order by the Nigam. There shall be no order as to
costs." It appears that during the pendency of the appeals and writ
petitions before this Court and after disposal of the same by this Court, a
spate of writ petitions followed in the High Court by the employees who had
retired long back. Some of the petitions were filed by the employees who
retired on attaining the age of 58 years long back. However, some were lucky to
get interim orders allowing them to continue in service. Number of writ
petitions were filed in the High Court in 2005 on various dates after the
judgment in the case of Harwindra Kumar (supra) and some between 2002 and 2005.
All those writ petitions were disposed of in the light of the judgment in the
case of Harwindra Kumar (supra) and relief was given to them for continuing in
service up to the age of 60 years. Hence, all these appeals arise against
various orders passed by the High Court from time to time.
So far
as the principal issue is concerned, that has been settled by this Court.
Therefore, there is no quarrel over the legal proposition.
But
the only question is grant of relief to such other persons who were not
vigilant and did not wake up to challenge their retirement and accepted the
same but filed writ petitions after the judgment of this Court in the case of Harwindra
Kumar (supra). Whether they are entitled to same relief or not? Therefore, a
serious question that arises for consideration is whether the employees who did
not wake up to challenge their retirement and accepted the same, collected
their post retirement benefits, can such persons be given the relief in the
light of the subsequent decision delivered by this Court? The question of delay
and laches has been examined by this Court in a series of decisions and laches
and delay has been considered to be an important factor in exercise of the
discretionary relief under Article 226 of the Constitution. When a person who
is not vigilant of his rights and acquiesces with the situation, can his writ
petition be heard after a couple of years on the ground that same relief should
be granted to him as was granted to person similarly situated who was vigilant
about his rights and challenged his retirement which was said to be made on
attaining the age of 58 years. A chart has been supplied to us in which it has
been pointed out that about 9 writ petitions were filed by the employees of the
Nigam before their retirement wherein their retirement was somewhere between
30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of
interim order was passed. They were granted interim order. Thereafter a spate
of writ petitions followed in which employees who retired in the years 2001, 2002,
2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much
after their retirement. Whether such persons should be granted the same relief
or not? Learned senior counsel for the appellants has invited our attention to
various decisions to impress upon that persons who are guilty of such laches
and acquiesced with the situation should not be granted any relief because it
is going to cost the Nigam a heavy financial burden to the tune of Rs.17,80,
43,108/-. Therefore, relief should be confined to those persons who were
continuing in service and filed their writ petitions in time but not to all and
sundry who woke up to file the writ petitions much after their retirement. In
this connection, our attention was invited to a decision of this Court in the
case of M/s. Rup Diamonds & Ors. v. Union
of India & Ors. reported in (1989) 2 SCC 356, wherein their Lordships
observed that those people who were sitting on the fence till somebody else
took up the matter to the court for refund of duty, cannot be given the
benefit. In that context, their Lordships held as follows:
"Petitioners
are re-agitating claims which they had not pursued for several years.
Petitioners were not vigilant but were content to be dormant and chose to sit
on the fence till somebody else's case came to be decided. Their case cannot be
considered on the analogy of one where a law had been declared unconstitutional
and void by a court, so as to enable persons to recover monies paid under the
compulsion of a law later so declared void. There is also an unexplained,
inordinate delay in preferring the present writ petition which is brought after
a year after the first rejection. As observed by the Court in Durga Prashad
case, the exchange position of this country and the policy of the government
regarding international trade varies from year to year. In these matters it is
essential that persons who are aggrieved by orders of the government should
approach the High Court after exhausting the remedies provided by law, rule or
order with utmost expedition.
Therefore,
these delays are sufficient to persuade the Court to decline to interfere. If a
right of appeal is available, this order rejecting the writ petition shall not
prejudice petitioners' case in any such appeal. "Our attention was also
invited to a decision of this Court in the case of State of Karnataka &
Ors. v. S.M.Kotrayya & Ors. reported in (1996) 6 SCC 267. In that case the
respondents woke up to claim the relief which was granted to their colleagues
by the Tribunal with an application to condone the delay. The Tribunal condoned
the delay. Therefore, the State approached this Court and this Court after
considering the matter observed as under:
"Although
it is not necessary to give an explanation for the delay which occurred within
the period mentioned in sub-section (1) or (2) of Section 21, explanation
should be given for the delay which occasioned after the expiry of the
aforesaid respective period applicable to the appropriate case and the Tribunal
should satisfy itself whether the explanation offered was proper. In the
instant case, the explanation offered was that they came to know of the relief
granted by the Tribunal in August 1989 and that they filed the petition
immediately thereafter.
That
is not a proper explanation at all. What was required of them to explain under
sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal
of their grievances before the expiry of the period prescribed under
sub-section (1) or (2). That was not the explanation given. Therefore, the
Tribunal was wholly unjustified in condoning the delay." Similarly, in the
case of Jagdish Lal & Ors. v. State of Haryana & ors. reported in (1997) 6 SCC 538, this Court reaffirmed the rule
if a person chose to sit over the matter and then woke up after the decision of
the Court, then such person cannot stand to benefit. In that case it was
observed as follows:
"The
delay disentitles a party to discretionary relief under Article 226 or Article
32 of the Constitution. The appellants kept sleeping over their rights for long
and woke up when they had the impetus from Vir Pal Singh Chauhan case. The
appellants' desperate attempt to redo the seniority is not amenable to judicial
review at this belated stage." In the case of Union of India & Ors. v.
C.K. Dharagupta & Ors. reported in (1997) 3 SCC 395, it was observed as
follows :
"We,
however, clarify that in view of our finding that the judgment of the Tribunal
in R.P.Joshi gives relief only to Joshi, the benefit of the said judgment of
the Tribunal cannot be extended to any other person. The respondent C.K.Dharagupta
(since retired) is seeking benefit of Joshi case. In view of our finding that
the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta
is not entitled to any relief." In the case of Government of W.B. v. Tarun
K. Roy & Ors. reported in (2004) 1 SCC 347, their Lordships considered
delay as serious factor and have not granted relief. Therein it was observed as
follows :
"The
respondents furthermore are not even entitled to any relief on the ground of
gross delay and laches on their part in filing the writ petition. The first two
writ petitions were filed in the year 1976 wherein the respondents herein
approached the High Court in 1992. In between 1976 and 1992 not only two writ
petitions had been decided, but one way or the other, even the matter had been
considered by this Court in Debdas Kumar.
The
plea of delay, which Mr.Krishnamani states, should be a ground for denying the
relief to the other persons similarly situated would operate against the
respondents. Furthermore, the other employees not being before this Court
although they are ventilating their grievances before appropriate courts of
law, no order should be passed which would prejudice their cause. In such a
situation, we are not prepared to make any observation only for the purpose of
grant of some relief to the respondents to which they are not legally entitled
to so as to deprive others there from who may be found to be entitled thereto
by a court of law." The 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. "In view of the
statement of law as summarized above, the respondents are guilty since the respondents
has acquiesced in accepting the retirement and did not challenge the same in
time. If they would have been vigilant enough, they could have filed writ
petitions as others did in the matter. Therefore, whenever it appears that the
claimants lost time or while away and did not rise to the occasion in time for
filing the writ petitions, then in such cases, the Court should be very slow in
granting the relief to the incumbent.
Secondly,
it has also to be taken into consideration the question of acquiescence or
waiver on the part of the incumbent whether other parties are going to be
prejudiced if the relief is granted. In the present case, if the respondents
would have challenged their retirement being violative of the provisions of the
Act, perhaps the Nigam could have taken appropriate steps to raise funds so as
to meet the liability but by not asserting their rights the respondents have
allowed time to pass and after a lapse of couple of years, they have filed writ
petitions claiming the benefit for two years. That will definitely require the Nigam
to raise funds which is going to have serious financial repercussion on the financial
management of the Nigam. Why the Court should come to the rescue of such
persons when they themselves are guilty of waiver and acquiescence.
As
against this, our attention was invited to a decision of this Court in the case
of Dayal Singh & Ors. v. Union of India
& Ors. reported in (2003) 2 SCC 593. In that case their Lordships observed
that when the High Court exercised discretion and condoned the delay, it is not
proper for the Supreme Court at the SLP stage to set aside the High Court's
order on that ground alone and more so, where the impugned judgment is legally
sustainable. This case does not provide any assistance to the respondents.
Learned
counsel for the appellants has also pointed out that at this belated stage if
the relief is given to the respondents who have retired and accepted the
retirement, that will cause a huge burden to the Nigam to the tune of
Rs.17,80,43,108/- and there is no sufficient funds for incurring such a huge
amount at this belated stage. This will completely ruin the financial condition
of the Nigam if all the persons who were not vigilant and did not take up their
cause before the Court, it would prove a great set back to the Nigam. In this
regard, a reference was made to a decision of this Court in the case of Krishena
Kumar v. Union of India & Ors. etc. etc. reported in (1990) 4 SCC 207. In
that case the question was to grant pensionary benefit to the provident fund
holders of the railways. A submission was made if the Court feels that a
positive direction cannot be given to the government, it was prayed that at
least an option should be given to the respondents either to withdraw the
benefit of switching over to pension from everyone or to give it to the
petitioners as well, so that the discrimination must go. This Court negatived
the submission and it was observed as follows :
"We
are not inclined to accept either of these submissions. The PF retirees and
pension retirees having not belonged to a class, there is no discrimination. In
the matter of expenditure includible in the Annual Financial Statement, this
Court has to be loath to pass any order or give any direction, because of the
division of functions between the three co-equal organs of the government under
the Constitution." Therefore, in case at this belated stage if similar
relief is to be given to the persons who have not approached the Court that
will unnecessarily overburden the Nigam and the Nigam will completely collapse
with the liability of payment to these persons in terms of two years' salary
and increased benefit of pension and other consequential benefits. Therefore,
we are not inclined to grant any relief to the persons who have approached the
Court after their retirement. Only those persons who have filed the writ
petitions when they were in service or who have obtained interim order for
their retirement, those persons should be allowed to stand to benefit and not
others. We have been given a chart of those nine persons, who filed writ
petitions and obtained stay & are continuing in service.
They
are as follows:
1. Shri
Bhawani Sewak Shukla
2. Shri
Vijay Bahadur Rai
3. Shri
Girija Shanker
4. Shri
Yogendra Prakash Kulshersht
5. Shri
Vinod Kumar Bansal
6. Shri
Pradumn Prashad Mishra
7. Shri
Banke Bihari Pandey
8. Shri
Yashwant Singh
9. Shri
Chandra Shekhar And the following persons filed Writ Petitions before
retirement but no stay order granted.
1. Shri
Gopal Singh Dangwal (W/P No. 35384/05 vide order dated 5.5.2005)
2. Shri
R.R. Gautam (W/P No. 45495/05 vide order dated 15.6.05) The benefits shall only
be confined to above mentioned persons who have filed writ petitions before
their retirement or they have obtained interim order before their retirement.
The appeals filed against these persons by the Nigam shall fail and the same
are dismissed. Rest of the appeals are allowed and orders passed by the High
Court are set aside. There would be no order as to costs.
It is
submitted that contempt petitions were filed before the High Court. In view of
the order passed in this batch of appeals, the contempt petitions will not
survive and the same are dismissed.
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