B.Pentaiah Nizamabad v. The A.P.S.R.T.C., Its Depot Manager, Nizamabad

HIGH COURT FOR THE SI r"U,i i 6 I5, ;',! lfl,3jif,flTi Ar HyD E RA BA D FRIDAY, THE THIR ,wo r, o r'.'ll S,Xi J D#YE ffffsf;

EMB ER PRESENT THE HONOURABLE SMT JUSTICE P. MADHAVI DEVI WRITP TITI N 0750 oF2 0 Between:

'f":31?&!a:f;i.i:,1#:lzli,i,LAgebXo:o"ut 47 vears, occ: conductor E No e24s7, AND ..,PETITIONER fl#;3,.lJrl -i!5-'#i; oenot Manaser, Bus Depot, ...RESPONDENT Petition under Articre 226 0r the constitution of rndia praying that in the circumstances stated in the affidavit fired therewith, the High court may be preased to issue an appropriate writ or drrection particurarry one in the nature of wRrr oF CERTIoRARI and quash the impugned proceeding No.T2l104[81]/86-KMR, dated 06.01.1987 as arbitrary, unjust and vioration of Articre 14, 16 & 21 of the constrtution of lndia and consequently direct the respondent's corporation to restore the deferred increment along with its consequential benefits. PMP. N 2s972 F 2002 Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may.be pleased to suspend the impugned order dated 6.1 .1987 pending disposal of the w.p. in the interest of justice and fair play.

Counsel for the Petitioner: SRl. V. NARASIMHA GOUD Counsel for the Respondent: SRI N. PRAVEEN REDDY (SC FOR TSRTC) The Court made the following: ORDER

TIIE HONOURABLE SMT JUSTICE P' MADHAVT DEVI TPETITION NO.2 0750 OF 2002 wRt

ORDER

ThisWritPetitionhasbeenfiledbythepetitionerunderAfticle 226 of the constitution of India seeking of a writ of certiorari to quash the imPLrgned Proceeding No.T2i 104(8I )i 86-KMR, dt.06.0I . 1 987 as arbirrary, unjust and in violation o1' Arricles 14' I6 and 2 I of the Const:itution of India'

2.

Brief facts of the case are that the petitioner joined the respondent organisation as a Conductor in the year 1980 and in the year 1986, while he was conducting bus service lrom Yerrapadu to Kamareddy, a check was exercised and certain cash and ticket irregularities were noticed. Accordingly, a charge sheet was issr-red to the petitioner and after due enquiry, the impugned order of stoppage of one annual increment, which next falls due, for a period of two years with cumulative effect, was passed. The petitioner has challenged this order by way of the present Writ Petition which is filed in the year 2002.

3.

Learned counsel for the petitioner, Sri V. Narasimha Goud, submitted that withholding o1- increment with cumulative effect was a .

-.4 major pLifiishment and irnposition ol a rnajor penalty without proper' enquiry is not legal. In support of his contentions, he placed reliance

) W. P.No.207j0 of 20112 upon a decision of this Court in tfie case of p.V.Narayana and oflrers Vs. A.P. State Road Transport Corporation rep., by its Managing Director and othersrand a decision of the Hon'ble Supreme Courl in the case of Kulwant Singh Gill Vs. State of Punjab2and also a decision of a Division Bench of this Court in W.A.No.606 of 2009 dt.12.01.2011.

4, Learned counsel for the respondent, Sri N' Praveen Reddy' on the other hand subrnitted that this Writ Petition has been filed after a lapse of 15 years lrom the date of the impugned order and therefore' the writ Petition is not rrraintainable. ln suppofi of his contention' he placed reliar-rce upoll the latest decision of a Division Bench of this Court in W.A.Nos.i660 of 2018 and 593 of 2016 dr'13'12'2021' wherein after considering the decision of the Hon'ble supreme court in the case of Kulwant Singh GiIl Vs' State of Punjab (2 supra)' the Hon'ble Division Bench held that the deiay of 5 to l8 years is inordinate delay in pret-erring a Writ Petition under Article 226 of the Constitution and therefore, the Writ Petition is not entertainable' 5.

The leamed counsel for the petitioner submitted that the petitioner was pursuing the matter with Ylabour union and therefore only after the labour union has reporled their failure' the petitioner has filed this Writ Petition' He drew the attention of this Court to the averlnents in the writ affidavit to this effect' , ZOt3 (l) rrL.-r 7ll (l'.8.) I 1991 supp(l) sCC 504

w P.No.20?50 of2002 6, Having considered the rival contentions and the material on I record, this Court finds that though the petitioner has stated that he had approached a labour union for redressal of his grievance and the labour union has returned the papers to him only in 2002, no evidence to this effect has been filed before this Cour1. Therefore, it appears to be an after-thought to get over the period of delay of nearly 15 years in filing of this Writ Petition challenging the punishment order. 1.

A Division Bench of this Hon'ble Court in W.A.Nos.1660 of 2018 and 593 of 2016, dr.13.12.2021, has considered similar issue and has held as under:

"I'he undisputed .facts reveal that a u,rit pelition 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 efect was in/lected upon the employee. The learned Single Judge has allowed lhe writ petition keeping in view the judgment delivered in the case oJ Kulwtnl Singh Gitl vs. State of Punjab3 .

Learned counsel appearing ./br the appellant/Corporation has argued before this Court that the employee in rluestion has approached this Court after a lapse I l99l Supp (l) SCC 501 2 of 17 years from the date of order oJ punishment and therefure in the light ctf the judgment delivered by the Full Bench rf this Court in the case of P.V. Naray,ana 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 f'ull Bcnch. Be/ire the l;ull Bench. the employees I 199 r Supp (l) sCC 504

I W.P.No.20750 of2002 came up he lire this Court ha i n t h e cu.s e rl/. K u lu.ant, ;:r' :' r0,,::r' ::'':::::: :", :;-:

paragraphs 7l to 77 has held as undey;

- ',71. On rhe basis o/the dec I o. a buve. t.h e re tel, a,, 1",i, t,,i ijli,rl,r;l r;, ff "ir,tr::*::, ,firo;1,"rri,,int thc irsue oJt de,u) una tach?s may be summarized rl, Though no pertod o1 lintitarion is prescribed fnr th" _,_;, Couns b exercise ;ht (onstiturion of traio"!.11'fil "a"' a"oi zziZii:i" aggrieved rhould app:r to Jile a writ petition' a oir*nn t,opp,ep,io1")i,ii":;:,'!:r::'i::!ll!.,,^.!^.,*.,!t,,." has properly been ext q(tuy and lhe samp t o t h e d v i t h c o Re n t r c a t o n s c o u r t ^ *'' ;; ;;i ; ";2" d'; :

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e u i i "'.,l r" i "" l Ij,,,5,, i l o, r* Li "!, !!:,: :

o:, di scret i,,n tnr r ht C,,ur r r, " ;;;,r;' ",,,-,:;":;:::,t,;:;l cxtraordinary rowers uhclcr,c, it " I ii,l,.,ir, irii",{, persont who do not approach i, "rr"ai i"r.ri.,,,. , ),1)j",,jll, and who.stand by ani allow ,h,rgr";; ;;;;;,ir,;;;;i;i:i" y:;i ; : ! : :it ";: l, a fo rw a r i s t a t e " [i;; ;;; ;',' ;

t c, "P Q) Caurts have evolved ruto" -f . . sel[_tnpo.red t.estr0tnt.\ ar .tL'uer.t .h hlrc th! High C,t1111 nay hot cnq irL, inru bclatcd ur stale (.lain tnd dcny ,alpf 16 , p"i,y ,f n" ir-i,)) Suuty ol tachp! ()ne \rha t\ tardv. n,,t vigtlant an) d,,et not seek intet-yehtion of the Court *i*i o "n^orob-|"

timc frou th-e datc o/ a,c"tul ofcause of olin, o, ott,]g") vrotauan oJ th. constttutioaal. legal or other right. is not entitled to reliefunder /lrticle 226 G1 I'io hard and last rule con he laicJ down fttr uniyer.sal ,tpplt,attctn and evcl ca.,t ,holl hove to be clcctdecl on its otr n .f act.r.

(1) There is no inviolable rule ol low that whencyer there is a delay, the Court must necessdily refuse b 2 2Al3 SCC Online /4P 729 3 entertoin lhe petition; it is a rule of practice based on sound and proper exercise of discrelion, and each case must be dealt with on hs owi /octs.

(5) There is no lower limit or upper limit and it will all depend on whqt the breach of the fundanental right and the remedy claimerl are and how the delay arose.

(6) The principle on which the Court refuses relief on the ground of laches or delal; is thdt the ights accrued to others by the delay in /iling the petition should not be disturbed, unle$ there is a reasonoble explanation for the deloy, because Court should not harm innocent parties if their ights had emerged by the detay on the part of the petitioher.t.

(7) Where Lherc is reniss or negligence on the part ofa parry opproaching the Court.for relief after an inordinate and unexplained delay, ln such cases, it \.l)ould not be proper to enforce the fundamental right. As a general rule if there has been unreasonable delay the Court ought not ordinarily ta lend its oid ta a parry in exercise of the exlraordinary pa\rer q[ nandamus.

(E1 l'here i.\ t1o 1.toi'et. o[ fundanental right. But while etercising ditcretionary jurisdiction Court can take into

W.P.No.20?50 of 2002 occount delay ond laches on the part of thv applicant in aPProuching d wr Courl t9) Though the High Courr in ar?rcise ctJ the powcr undet t-'i't' ) )(' ih it\ disctelton gr'tnl reli4 in cqs|l whetc l'hr |i)r*,7'''

':igh'' u'n \)ioldrcd' but in such -qses utsu. ,':-L /-^',tt t,, meer tht ehds oJ iuslice shLlll reluse l' '*1r.,t"",,t i'g' prero4ative iwisdicton in Jttvout oJ a ")^")'lu^ nn'' heen puilry o[ loche: rtnd whcre thcrc ar'e i,i ;7, : :,i,' :,i : ;7: ; i'i''i i' "i'

n'' n i n d i' a rc r h t t'z t "'

u u t d be inqppropriate n exercise lhe discrctionary iurisdiction t lAt Th? mdttmttn' p?rttd ltrL(l by the Legislatt"e 't'' tht ltnte ""'

":';;i;;h;,":;,i,.

,,t,"r t, L tuit ,n,t,t,it t ,n'! ttttt., b(. 'ir'.r)rnii ,rrrr ,,,-d'"'ii.v ruk"' tu bc a reLlsrtnablc 'stand(lrd ir'.i,rn irtr: ih seeking rcned)' trntler Article 226 cutt be measured (l l) lf a person entitled to a rehef chooses to renuin silent lbr ' ' i"ni, ha thereby gives tise tn o reasonable beliel in the 'riiia u7 o,n"ri,ii, he is nat interetted in cllining that relief. toutts hare applied the rule of delay with gteater rigclr in seNice fiatlers

(12) The bene/it of a iudgttent cannol be extended lo Q case automa ;ally. ih" Cou't is entitled to take into considerQtion the fact as to whether the petitionet had chosen to sit ovir the motter qnd b'ake uP ofter lhe decision of the Court if it is found that the petitionet approachetl the Court nith unreasonable delay, the same uay disentille him to obtain a discretionary telief Long deiay disentlles a parly to the discretianary relieJ under Articles 32 and 226 and persons who had slept over lheir rights for long 4 and elecled to wake trp when they had tie impetus /ron the jrtdgment oJ sinilarly placed persons.

Ll/here tluring the inter|ening period rights o./ third p(trties have crystallized, it would be inecTuitable to disturb those rights at the instance of a petson who has ( t3) approached the Court after long lapse oJ tinte and where there is no cagent explanation for the delay llhere the appellcte outhot'ily acting \rithin its jurisdictron condoned the delay aftet being satisJied with the facts stated it1 rclation thereta, the High Court in ' exercise of its powers under Article 226 ar 227 of the Constitution should not ordinarily iltedere wilh the (t1)

72. An afialysis of the case law discussed above wouLd anply moke it clear thot isslte oJ a wl"it af a anclLlilus or Lertiotttrt is largely a matlet of soLtnLl tliscrelittrt ttncl will noL he gtonted if there is negligenca or omisjian on lhc part of the perton to asserl his right as, taken in conjLtnctian v,ith the lapse tt/ tinte ancl other circumstqnces, couses preiudice ta the qdverse Pafiy. Thereforc, burden lies on the work an \^)ha has to establish that inspiteof his best elforts and diligence he v,us prevented fron upproaching the authoriry wihin the period oJ limitatian provided for or the )Nrit Court within a reasonable period of time. If the worknan is fiot able to satisfactorily explain with cogent reqsons for the delay he is not entitled to seek for condonation oJ the delay.

lt is true that the punishment imposed cqnnat be sustained in low because of the illegality clept in it in not conducting a prior enquil. But, still the workman is under q slotutory obligation to challenge the same within thertimc provided by the stotutory rules or regulalons or withiry* feasonable period aJ tin. belore the rrrtt Co rt.

W.P.No.20750 of 2002 i t,.t. lS ltars is cr,ndoned, for no a.u yt t,u r t1v r tu p r. c e " a,, g * t,,, o i:,iX' ii,,i,i, !:'l i,:; { : :", : ;!, ::, artdL. ScttiDg asitle o[ such orLler , : : :"

t : :

t :,, ;, ;,, ;, 1' ;; ;" i",', f r', l: ;ff ; ;:r; "tri, i: E:: i,,"r, (u/s. t'upta) t'trp i thL to,knon io vek1or,.;r;,:;;;r,','ri;;;":;,i oJ prahottnD os nell, in \hich evl tr,.t td ,tdrc,.r;ty h) q1[e',,;;;;: ',':i' rhe .riBhrs of the third parties rorJr.ctqdnor .li, gr;ii-1' ,'" 'o'r" ' toult ollhitrs 4t tAmatt uha te opp,orrnirg ,i,"- t)rri"",tii,i,'',i.Ii'ltnE a statut,ary remedl or in tut.mttt,d ,o ,,,,,,",,r ,inf ,',, i':,1,":':'" c,un4"t hr ?.ncourLt.q?d ot'

, ",,,, ,t,, r,,,,,i,,,,j,)n,i, , )rl""l,' ^,',i,.',,1,,.'!;, ,1';jYio!,lri,n,i,tl!,j,,,,) Ltn,- extent i.t to be condonetl auton ';;:.'.:::'.1.'.:.: "it ;;;;i,;;:;,:,' i i;:.i ;:"'"::r:,;i,i;:'.*1,'',f""::: L() r$ tn e\ercise o[ the discrelnn rhc. c.n.t rtrtion ,,r-,ii," iiiiiii',X7 ::;i'"',;f:y::;,: ,"::,:{ n hn t\ dil.ige ond vig aht hut unable n appt-orfr,in ;'r,ilrii"l) , -1r,,:.-./ ,* 1or redressal o-f his grieuance'i, spir) r.,:t i,;;;;i';i:;, end.reaso4s beyond his corurol but not rc o perton wha i, torii ,|a neglig,ent or slept over the matter a *riiii[ ii"'"'rir,;;;y,:;; remedies.

73. No doubt in the plesent cases the punishment awarded qrnnot be sustained in lqw in view oJ the lav, laid down bv the l:,: r,:-.:,:

1 ",,,,, i n K u t w a n r S t 4 sh G i l t . as,,,,, r,: r i ), i,,', n7 t, ii, ot rne Kequtdtta\s bttt_ a _\pe-ttic p, riad hor_ng t*n prt,,rih,,i in th, Kcgu.l,ttion\ ,f th, 5 r'arp,rutiih a, ,rat,.l tu,i,, th, ,oot, ne?d ta h\,,tdhere.J to. 7he pr,.ti.., nndi, R,,Eulati^n 23 ,,n,p,,uer, tht ofpcllotr authortn.t,, ctuLrtain rn oppril "u,r.ttier ex7ir.1 o1 t,l'c ,t' tt ,l .,r lu\itorit-tn fu\tJt.J 1f tt i, sari.,nicl tltai thc appcilait noJ \tttt.t-'t1t courfl,., ".,t .11Lt,1i11,ng tht.,tpfi"1l tn t;n,.. 4 .,tntilor po\ter tno), al_\o be exercised under Regulation 29. l{the oulhatitv i.t not satisled with the explanation offerecl bv ihe *orknari i, ,-htllcnyrtq th, o"der" ot puntshn,,nt, this Court. tn cxercis( ot thc juti.tdictiotl utldet.

Article 226, cannot inlerfere Ltnless the conclusion arrir:ed at hy the authoritv thdt the explanatiotr oJfered b|; tlte workman is nol jusli/ied or germane or no prudent person t,,ould ltate conte to .\uch a conclusion. ln apprcpriate cases whete the appeal ot reyision is.filed \rithin a reasonable period of deloy, it is alva1,5 11p", /a) lhe appellale or reyisianal authority to corujone the tl.lq ot, talid Lxplanattan put tnrth b rhc uorAman tn not approoching the duthorities y,ithin the time specified. in which e\)e)11, the \+ril Court should not inter/bre with the ardet. ln our opinin. tlten Regulatians prot,ided a period oI tu,o months fitr filingonoppeal and six months./br a revi.\ian, delay of 5 16 16r"ort in approdching Lhe aulhariD) ttould cet.t.linl1, hefatal to the case ofa ttorknan unles.

s prope t erplained wilh cogent reasons. ,'4 It it true that tn some cases u,here the del6y is _/ire .years or so the Supreme Court inchned to condone the delav but under different circumstances when the .fundamentol rights are violatetl ttr where the deloy is not directly attributable to the porry, seeking the relief or where the righls o/ the third parties are not inlervened or in matlers where seniority of employees is not Jinalized, the Court, would be justtfied to grant the relief; but not as a general rule of practice. Therefore, in our considered opinion, Kulwant Singh Gill's cqse (supra), does not confet or clothe qn aulonalic righl v,)ith the employee to challenge the order of the authority al any time or wheneyer he wishes.

The principles laid down by the Apex Court governing lhe condonation of delay wilL certainly and equally hove application even in cases where challenge is mdde lo an order imposing the punishmenl contrary lo lhe ReErlatians or the ratio in Kulwanl Singh Gill's case (supra), where lhe employee had slept ovet the malter and had nol chosen to challenge it within o reasonable pe od of tine.

W.P.No 20750 o12002 75' lle therelore' agree \'tih the riev/ nken by the Division sencn in id. Esa 'lti i case tsuP'a) 76 We ans\^'er lhe reference accordingLy -- Ai Lttrtod\ nt)t(ct in 'ut ( ..:':il;;: "i't!'ti ii" orders are purrr J..o,'.'1". .','o.l::::; rr',';rr' inl ow ut' *r.,trr, "',i' petitioners. tn th! tisht "t ':: :::,::i",':;;; i" h, li,r,^."t ut bv th' ..tppeal ancl rhe respecltte "'" l')',')I" "tr.i',h" ,o,u'" beJart lh! [[p,op,ior" Brnrhcs .

Re9istt v".t't'il ,l|iua"""" ",,h law and in the apprcpriate B(nches Jo.r dtspasa'

in' ,iir'1uagl,/nn, l'rghr o f the PnnciPles laid down The delay oJ'5 to 16 years tt'as held to be inordinate delay in preferrtng awrit petition under Article 226 ol the Constitution of India In the considered opinion of this Court' on the issue Qf delay and laches, as has been considered by the Full Bench' as there v,as certainly an inordinate delay of l7 years in approaching this Court, the order passed h1' the learnecl SingLe Judge is hereby set aside.

Accordingly, the writ appeals are allowed'

This Bench in some of the cases has taken a contrary'iiew on the issue of delay and laches' but the Jact renains lhat lhe juclgment of the Full Bench has been brought to out notice for the rtrst time torlay and therefore, the ortler has been passed in the light of the judgment deliveretl by the Full bench sltLtll :ttrncl t losctl T here \1i.\(ellLtLteou.\ 1;t: lilitttt. il unt'

si'tull bc no ttrtlet us trt c:osl.l 8.

Respectfully following the same and as the facts and circumstances in this case are similar, this Writ Petition is dismissed on the ground of inordinate delay of l5 years' No order as to costs' Pending miscellaneous petitions, if any, in this Writ Petition shall a lso stand distnissed.

^..B?it{AE.TJ[]i[ sEcrlodbfFlcER IITRUE GOPY"

To I 3ffi 33 B sl',Y )a'"x'JT[i3f;i$'fsfri!ffi I loeuci e. l-:3|#Bffiy CHR NPJ

-<-'4:-""

HIGH COURT DATED:31 11212021 ( 1Yl E STA I4.'

J a)o

ORDER

0 2 tEB 2{i2?

W.P.No.20750 of 2002 , DISMISSING THE WRIT PETITION WITHOUT COSTS