Dismissed

Enaganti Sivaiah v. Apsrtc Rep. by its Vice Chairman And Managing Director

Andhra Pradesh HC6 Jan 2023WP/34956/2016

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a retired driver claiming salary differences and retirement benefits under disability laws. The court held that despite no strict limitation in writ petitions, the petitioner's unexplained delay of three years amounted to laches, disentitling them to discretionary relief.

What did the court decide?

No costs. Interlocutory applications pending, if any, shall stand closed.

Enaganti Sivaiah Vs Apsrtc Rep. by… — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

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WRIT PETITION No.34956 OF 2016

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ORDER:

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This Writ Petition is filed under Article 226 of the Constitution of India for the following relief:-

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"To issue any appropriate Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in placing the petitioner in the time scale of Shramik and non-payment of salary from the date of my unfitness till the date of providing alternate differences of salary payable to petitioner that is differences of salary driver and Shramik as arbitrary and violative of Articles 14 and 21 of the Constitution of India and Section 47 and other provident of persons with disability, with equal opportunities (Protection of Rights and full participation) Act, 1995 consequently direct the respondents to pay petitioner the salary from the date of my unfitness till the date of my alternative employment and payment of differences of salary between driver and shramik with all consequential attend benefits and payment of my retirement benefits such as gratuity, leave salary, SBT, SRBS on the basis of last payable salary of

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driver together with interest @ 12% per annum grand cause of proceedings and pass such other orders."

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The petitioner worked as Driver in Andhra Pradesh State Road Transport Corporation (APSRTC) from 01.09.1992 to 24.05.2011 and he was declared medically unfit on 25.05.2011 and he was appointed as Shramik on 25.11.2011 in the 3^rd respondent-Depot and worked as such upto 30.06.2016 on which date, he retired from service on attaining superannuation age of 58 years. It is the case of the petitioner that he was declared medically unfit on 25.05.2011 and his salary was not paid from the date of medically unfitness, i.e., 25.05.2011 till the date of his appointment as Shramik on 25.11.2011 and he was

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not given pay scale from the date of his re-appointment as Shramik and, on the other hand, he was given pay scale of Shramik and therefore, he requested the respondents to pay

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number of times for payment of difference of salary, but the respondents are dodging payment and the respondents also did not pay his retiremental benefits, viz., SSB earned leave encashment and difference of gratuity. It is the contention of the

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learned counsel for the petitioner that under Section 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called, ‘the Act, 1995’), if an employee of acquiring disability is not suitable for the post should be shifted to some other post with the same pay scale and service benefits provided further that if it is not possible to adjust the employee in any other post, he may be kept on a supernumerary post until the suitable post is available or he attains age of superannuation whichever is earlier. It is the further contention of the petitioner that he was medically unfit for the post of Driver and therefore, he was re-appointed as Shramik and shall be entitled for pay scale of the Driver though he was re-appointed as Shramik and under Section 47 of the Act, 1955, he is entitled for the pay scale of the Driver and even after repeated representations, the respondents have responded and therefore the present Writ Petition is filed. He relied on a judgment of the composite High Court in the case of K.Moses v. APSRTC, Musheerabad, Hyderabad and others¹ on aspect of entitlement of pay scale under Section 47 of the Act, 1955, and

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1 2011 (1) ALD 823

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he also relied on orders of this Court in W.P.No.36337 of 2011 and batch, wherein in the said case, the High Court has directed the authorities to pay arrears of pay and allowances with 8% interest from the due date till the date of payment, when the driver was declared medically unfit.

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Per contra , learned counsel for the respondents filed counter and would contend that due to the disability of the petitioner herein, he was provided with an alternative employment of Shramik and his pay will be protected based on the category of employment, whereby once an alternative employment is provided pay scale will be provided on the allotted category and there are no justifiable grounds in the Writ Petition and it is not warranted any interference of this Court and he would also contend that the petitioner has approached this Court with a delay of 6 years for seeking the relief and, therefore, he is not entitled for the relief and he relied on a judgment of the Hon’ble Apex Court in the case of Rushibhai Jagdishchandra Pathak v. Bhavnagar Municipal Corporation² , wherein it was held by the Hon’ble Apex Court by following several judgments that

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2 2022 SCC Online SC 641

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the law of limitation does not apply to the Writ Petitions, albeit the discretion vested with a constitutional court is exercised with caution as delay and laches principle is applied with the aim to secure the quiet of the community, suppress fraud and perjury, quicken diligence and prevent oppression and further held that there must be a lifespan during which a person must approach the court for their remedy, otherwise, there would be unending uncertainty as to the rights and obligations of the parties by referring the judgment in the case of Moons Mills Ltd. v. M.R. Mehar, President, Industrial Court, Bombay and others³ and referred to the view expressed by Sir Barnes Peacock in The Lindsay Petroleum Company and Prosper Armstrong Hurd, Abram Farewell, and John Kemp⁴ in the following manner:

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“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

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3 AIR 1967 SC 1450

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4 (1874) LR 5 PC 221

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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. 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."

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The Hon’ble Apex Court further relying on the judgment in the case of Union of India and others v. Tarsem Singh⁵ while relying on the decision of Shiv Dass v. Union of India and others⁶ quoted the following passages from the latter judgment:

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"10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. If petition is filed beyond a

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5 (2008) 8 SCC 648

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6 (2007) 9 SCC 274

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reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."

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Eventually, the Hon’ble Apex Court held that the High Courts would restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the Writ Petition.

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Per contra , learned counsel for the respondents would submit that the respondents cannot take the defence of the delay and laches once the matter has been admitted and at the time of final hearing and he also relied on the judgment of the Hon’ble Apex Court in the case of Ramachandra Shankar Deodhar and

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others v. The State of Maharashtra and others⁷ , wherein a Constitutional Bench observed at paragraph No.9 that we do not think this contention should prevail with us and in the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of

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7 AIR 1974 Supreme Court 259

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discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition and it is further observed that there is no lower limit and there is no upper limit and it will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose and it is also observed that it may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay and the petitioner also relied on another judgment of this Court in the case of Sri Ch.S.Rajeswara Rao v. Government of A.P., rep. by Principal Secretary, Transports Department and others dated 14.09.2022 in W.P.No.5486 of 2011, a learned Single Judge of this Court held that even if there are laches on the part of the petitioner, the Court, while exercising its discretion, should lien in favour of entertaining the petition and deciding the same on merits to impart justice to the disabled person. The learned Single Judge also relied on the judgment of the Hon’ble Apex Court in the case of Narayani Debi

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Khaitan v. State of Bihar and others⁸ and the Hon’ble Apex Court held that no hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches and the learned Single Judge eventually held that the disability by itself can be considered to be a ground disentitling the petitioner in not approaching this Court at the earlier point of time.

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By relying on the above judgments, learned counsel for the petitioner would submit that this Court can exercise discretion for doing substantial justice and the delay would not cause any impediment for exercising the jurisdiction under Article 226 of the Constitution of India.

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A Full Bench of the composite High Court in the case of P.V.Narayana v. APSRTC, Hyderabad and others⁹ , after considering numerous judgments, right from the year 1964, has laid down the guidelines, which are extracted hereunder:

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8 1964 SCC Online SC 1

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9 2013 (4) ALD 386 (FB)

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"(1) Though no period of limitation is prescribed for the writ Courts to exercise their powers under Article 226 of the Constitution of India or to file a writ petition, a person aggrieved should approach the Court without loss of time. In appropriate cases, where there is delay and the same has properly been explained with cogent reasons, Court may condone the delay as an exception to meet the ends of justice. But, it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.

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(2) Courts have evolved rules of self-imposed restraints or fetters where the High Court may hot enquire into belated or stale claim and deny relief to a party if he is found guilty of laches. One who is tardy, not vigilant and does not seek intervention of the Court within a reasonable time from the date of accrual of cause of action or alleged violation of the constitutional, legal or other right, is not entitled to relief under Article 226.

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(3) No hard and fast rule can be laid down for universal application and every case shall have to be decided on its own facts.

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(4) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the

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petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.

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

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(6) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.

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(7) Where there is remiss or negligence on the part of a party approaching the Court for relief after an inordinate and unexplained delay, in such cases, it would not be proper to enforce the fundamental right As a general rule if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party in exercise of the extraordinary power of mandamus.

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(8) There is no waiver of fundamental right. But while exercising discretionary jurisdiction Court can take into account delay and laches on the part of the applicant in approaching a writ Court.

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(9) Though the High Court in exercise of the power under Article 226 in its discretion grant relief in cases where the

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fundamental rights are violated, but, in such cases also, High Court, to meet the ends of justice, shall refuse to exercise its high prerogative jurisdiction in favour of a party who has been guilty of laches and where there are other relevant circumstances which indicate that it would be inappropriate to exercise the discretionary jurisdiction.

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(10) The maximum period fixed by the Legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured.

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(11) If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Courts have applied the rule of delay with greater rigor in service matters.

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(12) The benefit of a judgment cannot be extended to a case automatically. The Court is entitled to take into consideration the fact as to whether the petitioner had chosen to sit over the matter and wake up after the decision of the Court If it is found that the petitioner approached the Court with unreasonable delay, the same may disentitle him to obtain a discretionary relief. Long Delay disentitles a party to the discretionary relief under Articles 32 and 226 and persons who had slept over their rights for long and elected to wake up when they had the impetus from the judgment of similarly placed persons.

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(13) Where during the intervening period rights of third parties have crystallized, it would be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and where there is no cogent explanation for the delay.

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(14) Where the appellate authority acting within its jurisdiction condoned the delay after being satisfied with the facts stated in relation thereto, the High Court in exercise of its powers under Article 226 or 227 of the Constitution should not ordinarily interfere with the order."

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Under guideline No.8, the Full Bench held that even though there is no waiver of fundamental right, but while exercising discretionary jurisdiction Court can take into account the delay and laches on the part of the petitioner in approaching this Court. Under guideline No.10, the Full Bench held that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily taken to be a reasonable standard by which delay in seeking remedy under Article 226 of the Constitution of India can be measured. The same principle has been stated in the judgment in Rushibhai Jagdishchandra Pathak’s case (2 supra).

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In the present case, the petitioner has not assigned any reason for the delay in the Writ Petition for approaching this Court for the relief claimed. The relief claimed in the present Writ Petition is relating to monetary benefits, i.e., differentiation of salary, gratuity, etc.

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Unless it is specifically or expressly provided it in any act in general period of limitation as provided under the Limitation Act is 3 years for recovery of money and money related matters. If the principle adopted as held by the Hon’ble Supreme Court in Rushibhai Jagdishchandra Pathak’s (2 supra) and the judgment of the Full Bench of the composite High Court in P.V.Narayana’s case (9 supra) under guideline No.10, the maximum period fixed by the legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily taken to be a reasonable standard by which delay in seeking remedy under Article 226 of the Constitution of India can be measured. If the same principle is adopted, the petitioner herein has to file the present Writ Petition within a reasonable time. The writ petitioner ought to have filed the Writ Petition in

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the year 2011 but the present Writ Petition is filed in the year 2016. As such, there is a delay of 3 years in filing the Writ Petition, apart from delay prescribed excluding from the date of retirement. Admittedly, no reason has been assigned in the Writ Petition for the delay. Though the provisions of the Limitation Act may not strictly apply in the lack of jurisdiction, the maximum period fixed by the legislature may ordinarily be treated as reasonable period in seeking remedy under Article 226 of the Constitution of India. Learned Single Judge in Sri Ch.S.Rajeswara Rao v. Government of A.P., rep. by Principal Secretary, Transports Department and others dated 14.09.2022 in W.P.No.5486 of 2011, has taken into consideration the disability of the petitioner therein and the judgment of the Hon’ble Apex Court in Rushibhai Jagdishchandra Pathak’s case (2 supra) and the judgment of the Full Bench of the composite High Court in P.V.Narayana’s case (9 supra) have not been referred in Sri Ch.S.Rajeswara Rao’s case, wherein it is categorically held that though the period of limitation is not applicable strictly, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil Court must be brought may

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ordinarily taken to be a reasonable standard by which delay in seeking remedy under Article 226 of the Constitution of India can be measured.

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Learned counsel for the petitioner would submit that the delay and laches is a pure question of fact which cannot be agitated at the time of hearing. Answer: So far as the question of laches is concerned, in my opinion, the mixed questions of law and fact as the interference of laches based upon findings on fact is of interference of law. The Hon’ble Apex Court in the case of Board of Secondary Education of Assam v. Md. Sarifuz Zaman and others¹⁰ , has categorically held that the delay defeats the discretion and loss of limitation destroys the remedy itself and the delay amounting to laches results in benefit of discretionary power being denied on principles of equity and loss of limitation resulting into depriving of the remedy, is a principle based on public policy and utility and not equity alone. Statutes of limitation are sometimes described as ‘statutes of peace’ and unlimited and perpetual threat of limitation creates insecurity

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10 (2003) 6 SCC 408

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and uncertainty; some kind of limitation is essential for public order.

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