Maan Singh vs State Of Himachal Pradesh & Ors

Jyotsna Rewal Dua, J

Since, these writ petitions involve common questions of law and facts, with the consent of learned counsel for the parties these are taken up together for adjudication. For sake of convenience, facts from CWP No.9282 of 2025 are being referred to hereinafter.

Petitioner feels aggrieved against the order passed by the Deputy Labour Commissioner, Himachal Pradesh on 27. 04.2024 in declining to refer the dispute raised by the petitioner for adjudication to the learned Labour Court-cum- Industrial Tribunal, on the ground of same being stale, belated and having faded away with time. Beside assailing this order, petitioner seeks directions to the respondents to condone/quash alleged artificial/fictional breaks given to him from 1998 to 2005 and consequently, to regularize his services w.e.f. 01.01.2004, on completion of 8 years of regular service w.e.f. 1998.

From the pleadings in the writ petition as also the representation preferred by the petitioner on 30.11.2021 (Annexure P-5) following facts emerge: -

2(i). Petitioner was engaged as Daily Wage Beldar by the respondents-Irrigation & Public Health Department on muster-roll basis. He was allowed to work for 18 days in a month, w.e.f. 1998 till 2005, and muster-roll was accordingly issued to him. According to the petitioner, he was willing to work for the entire duration of month but was forcibly given artificial/fictional breaks every month by the respondents. For this reason, petitioner could not complete 240 days of service w.e.f. 1998 to 2005.

2(ii). From the year 2006 onwards, the respondents stopped giving fictional breaks and issued muster-roll to the petitioner for the entire month and allowed him to complete 240 days in each calendar year. In this manner, the petitioner completed 8 years of continuous service and accordingly, his services were regularized vide office order dated 03.10.2013 (Annexure P-2). Petitioner, thereafter, continued to serve with the respondents on regular basis.

2(iii). It was on 30.11.2021 that the petitioner represented for the first time to the respondents by issuing a demand notice that breaks given to him during the period 1999 to 2005 were artificial/fictional and illegal; This illegal act of the respondent-Department wrongfully denied the benefit of continuous service to the petitioner and amounts to unfair labour practice. The respondent-Department was called upon to reckon the period of petitioner’s entire daily wage tenure from the year 1999 as continuous service for the purpose of regularization of service and also towards seniority and other consequential benefits.

2(iv). The dispute raised by the petitioner could not be settled in the conciliation proceedings. The Deputy Labour Commissioner, Himachal Pradesh passed the order on 27.04.2024 holding that petitioner had raised industrial dispute after 16 years from the cause of action. The dispute was stale and faded away with passage of time and therefore, was non-existent. The dispute raised by the petitioner thus was not referred for adjudication by the learned Labour Court-cum-Industrial Tribunal.

2(v). In the aforesaid background, the petitioner has preferred this writ petition seeking following substantive reliefs:-

“i. the order passed by the Conciliation Officer/Deputy Labour Commissioner H.P. dated 27-04-2024, may be set aside & quashed.

ii. the action of respondents giving artificial/ fictional breaks to the petitioner from 1998 to 2005 be set aside & quashed.

iii. that the service of the petitioner may be counted for regularization from his initial engagement from the year 1998 & the petitioner regularized on 01-01-2004 on completion of 8 years of regular service pursuant to the regularization policy of the Government with all consequential benefits.

iv. that the consequential benefits as released to similarly situated persons Mohinder Kumar & Tilak Raj released vide Annexure P-3 & P-4 be also released to petitioner.”

Learned Senior Counsel for the petitioner contended that in somewhat similar circumstances, the respondents had passed an order on 28.05.2020 (Annexure P-3), in case of one Sh. Mohinder Kumar, Beldar, whereby fictional breaks in service from the date of Mohinder Kumar’s initial engagement, i.e. from 1995 to April, 2006, were condoned and his daily wage seniority was ordered to be reckoned from the year 1995. Another order relied upon by leaned Senior Counsel of even date, i.e. 28.05.2020 (Annexure P-4), was passed in case of one Sh. Tilak Raj, Beldar, whereby fictional breaks in the service of said Sh. Tilak Raj from the date of his initial engagement, i.e. 01.04.1998 till April 2006, were ordered to be condoned. Reliance was also placed upon a decision rendered in Tarlesh Bali and Ors. vs. State of Himachal Pradesh & Ors. CWP(T) No.1129 of 2008 decided on 17.05.2010, wherein considering the facts of the said case in relation to the petitioners therein, the practice adopted by the respondent-State allowing the petitioners (therein) to work only for 18 days in a month was deprecated. The action of the respondent-State giving artificial/fictional breaks was quashed and set aside in case of the petitioners therein for the purpose giving them seniority.

Learned Senior Counsel for the petitioner also pressed into service the decision rendered in Rakesh Kumar vs. State of H.P. & Ors. CWP No.2735 of 2010 decided along with connected matters on 28.07.2010, wherein respondents were directed to consider the case of the petitioners (therein) for conferment of work-charge status, as under:-

“6. The simple question is whether the delay defeats justice? In analyzing the above issue, it has to be borne in mind that the petitioners are only class-IV workers (Beldars). The schemes announced by the Government clearly provided that the department concerned should consider the workmen concerned for bringing them on the work-charged category. So, there is an obligation cast on the department to consider the cases of the daily waged workmen for conferment of the work-charged status, being on a work-charged establishment, on completion of the required number of years in terms of the policy. At the best, the petitioners can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy and under which policy, the department was bound to confer the status, subject to the workmen satisfying the required conditions.

In the above circumstances, these Writ Petitions are disposed of directing the respondents to consider the case(s) of the petitioners herein for conferment of work-charged status, subject to their eligibility in terms of the policy dated 3.4.2000 and as explained in 6.5.2000 policy, as extracted above. Needful in this regard shall be done within a period of three months from the date of production of the copy of this judgment by the respective petitioners. Needless to say that the question of conferment of work-charged status does not arise in case the establishment ceases to be a work charged establishment and hence, the conferment of the status will not arise after the abolition of the workcharged status of the establishment.”

Learned Senior Counsel submitted that in view of above decisions, the fictional breaks given in service to the petitioner from 1998-2005 deserve to be condoned and petitioner’s service are required to be regularized with effect from 2004, i.e. on completion of 8 years of continuous service as a daily wager by counting his seniority from the year 1998.

Heard learned Senior Counsel for the petitioner, learned Additional Advocate General for the respondents and considered the case file.

4(i). Reliance placed by the learned Senior Counsel upon two office orders dated 28.05.2020 (Annexure P-3 & P-4) will not be beneficial to the petitioner in the facts of the instant case. Admittedly, the aforesaid office orders were issued pursuant to and in compliance with the awards passed by learned Labour Court-cum-Industrial Tribunal in respective cases. Petitioner in the instant case had not raised any industrial dispute at the relevant time for condoning the alleged fictional breaks given to him from 1998 to 2005. The petitioner, therefore, cannot seek parity with the two workmen in whose cases office orders were issued on 28.05.2020 based upon the separate awards passed by the learned Labour Court-cum-Industrial Tribunal.

4(ii). The decision in Tarlesh Bali1 was rendered on 17.05.2010. It is not the case of the petitioner that he was unaware of this decision. The petitioner’s services were regularized after the decision in Tarlesh Bali1. In fact, petitioner’s services were regularized under office order issued on 03.10.2013, i.e. three years after the decision in Tarlesh Bali1. Under this office order, petitioner’s seniority was counted from 2006, i.e. when he completed 240 days of continuous service in the calendar year. The petitioner accepted the office order, whereby his services were regularized w.e.f. 03.10.2013. In case, he was aggrieved by the date from which his services were regularized, it was for him to raise the issue at an appropriate stage, which he did not. Not only did the petitioner accept the regularization order, but he also continued to discharge his duties thereafter for eight long years. It was only on 30.11.2021 that he raised an industrial dispute for the first time, alleging that he had been illegally given fictional/artificial breaks every month from the year 1998 to 2005. In Jai Singh vs. State of H.P. & Ors. CWP No.2190 of 2020 decided by Full Bench along with connected matters on 30.03.2022, the effect of delay in raising the demand and making reference of the industrial dispute to the Labour Court/Industrial Tribunal under Section 10(1) of the Act was culled out as under:-

“28. Following principles of law can, therefore be culled out from series of the precedents discussed above, as to the effect of delay in demanding /making reference of the industrial dispute to the Labour Court/Industrial Tribunal under Section 10(1) of the Act:-

i) That the function of the appropriate Government while dealing with question of making reference of industrial dispute under Section 10(1) of the Act, is an administrative function and not a judicial or quasi judicial function.

ii) That the Government before taking a decision on the question of making reference of the industrial dispute has to form a definite opinion whether or not such dispute exits or is apprehended.

iii) That whether or not the industrial dispute exists or is apprehended in the meaning of Section 10(1) of the Act can be decided by the appropriate Government alone and not by any other authority including by this Court.

iv) That the appropriate Government in discharging the administrative function of taking a decision to make or refuse to make, reference of the industrial dispute under Section 10(1) of the Act, has to apply its mind on relevant considerations and has not to act mechanically as a post office.

v) That while forming an opinion as to whether the industrial dispute exists or is apprehended, the appropriate Government is not entitled to adjudicate the dispute itself on merits.

vi) That the delay by itself does not denude the appropriate Government of its power to examine advisability of making reference of the industrial dispute but the delay would certainly be relevant for deciding the basic question whether or not the industrial dispute “exists” which also includes the decision to find out whether on account of delay the dispute has ceased to exist or has ceased to be alive or has become stale or has faded away.

vii) That whether or not a dispute is alive or has become stale or non-existent, would always depend on the facts of each case and no rule of universal application can be laid down for the same.

viii) That even if Section 10(1) of the Act empowers the appropriate Government to form an opinion “at any time” on the question whether any “industrial dispute” “exists or is apprehended”, and there is no time limit prescribed for taking such a decision, yet such power has to be exercised by the appropriate Government within a reasonable time.

ix) That the period for making reference of industrial dispute is co-extensive with the existence of dispute because the factum of the “existence” or “apprehension of the dispute” is conditioned by the effect of the delay on the liveliness of the dispute

x) That the appropriate Government in arriving at the decision to make a reference of industrial dispute or otherwise, in the context of delay, may examine whether the workman or the Union has been agitating the matter before the appropriate fora so as to keep the dispute alive, which however, does not necessarily mean that in a case where such action has not been initiated, the dispute has ceased to exist.

xi) That the appropriate Government can, as per Section 10(1) of the Act, take a decision on the question of making reference “at any time”, thus implying that there is no limitation in taking such decision and the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to such proceedings.

xii) That the appropriate Government while taking a decision on the question of making reference, need not provide an elaborate opportunity of hearing to the workman but it is under an obligation to consider his explanation for delay in making the demand.

xiii) That in cases where the appropriate Government while examining the question of making a reference of industrial dispute arrives at a decision that the question that on account of delay the dispute has ceased to exist or alive, would require elaborate examination of the evidence, it may while making a reference of the industrial dispute, additionally formulate question on this aspect to be decided as preliminary issue while simultaneously also making a reference on the industrial dispute to be decided as secondary issue.

xiv) That even in a case where reference has been made to the Industrial Court after prolonged delay, such Court would be entitled to mould the relief by declining whole or part of the back wages.

xv) That even when a reference is made by appropriate Government in a case after huge and enormous unexplained delay, the industrial Court would be entitled to return the reference since such Court judiciously exercises its wide jurisdiction under Section 11-A of the Industrial Disputes Act and is under obligation to consider whether in such like situation any relief at all could be granted to the workman.”

In terms of above decision, the appropriate Government in discharging the administrative function of taking a decision to make or refuse to make, reference of the industrial dispute under Section 10(1) of the Act, is not to act mechanically as a post office but has to apply its independent mind on relevant considerations. The Government before taking a decision on the question of making reference of the industrial dispute has to form a definite opinion whether or not such dispute exists. The delay is a relevant factor for deciding the basic question whether or not the industrial dispute exists or has ceased to be alive or become stale or faded away. Decision of this question would always depend upon the facts of each case. The appropriate Government while taking a decision on the question of making reference though need not provide an elaborate opportunity of hearing to the workman but it is under an obligation to consider his explanation for delay in making the demand.

In the instant case, petitioner’s case is that fictional breaks were given to him during the years 1998 to 2005. But the fact is that the petitioner never felt aggrieved against giving of alleged fictional breaks to him. He was not the petitioner in Tarlesh Bali1, which was instituted in close proximity of the cause of action. The petition was decided on 17.05.2010. Even at that stage, he did not raise any dispute for applying the aforesaid decision to him. In fact, his services were regularized three years later, i.e. on 03.10.2013, by taking into consideration the continuous service rendered by him w.e.f. 2006 onwards and ignoring his previous service with breaks. He did not raise any grievance at that stage as well and continued to work on the basis of his having been regularized w.e.f. 03.10.2013 after taking his continuous service with 240 days in each calendar year w.e.f. 2006 onwards. It was only on 30.11.2021 that he raised the industrial dispute concerning fictional breaks allegedly given to him during the years 1998-2005. In the given facts, the impugned order justly declines to refer the dispute raised by the petitioner on 30.11.2021 for adjudication to the learned Labour Court-cum-Industrial Tribunal as the dispute raised by the petitioner had become stale, belated and was non-existent in view of law discussed in Jai Singh3. Even in this writ petition, no justification has been accorded as to why the petitioner could not raise the industrial dispute or could not seek the relief, which he is now praying in this writ petition, at the relevant time. Petitioner now aged 58 years has no explanation to offer for the delay. The petitioner accepted regularization of his services w.e.f. the year 2013 for eight long years. Bichitrananda Behera Versus State of Orissa and others 2023 SCC OnLine SC 1307 holds that delay and laches are vital in service matters and can be seen as acquiescence. Belated service related claim is to be rejected on the ground of delay and laches. Laches can be based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. Acquiescence implies active assent and is based upon the rule of estoppel in pais. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches.

Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. Hon’ble Apex Court observed that the claimant therein had delayed pursuing his claim for over 12 years despite being aware of the appointment of another person to the same post of Physical Education Trainer (PET). This prolonged inaction was held to amount to acquiescence, which effectively bars the claim because it implies consent through silence or failure to act. Hon’ble Apex Court explained that while laches refers to an unreasonable delay without active consent, both delay and laches serve the important purpose of preventing stale claims that disrupt settled rights and administrative decisions. In service matters, these doctrines were held to play crucial roles as they protect the stability and finality of administrative decisions. Relevant portion of the judgment reads as under:-

“21. Profitably, we may reproduce relevant passages from certain decisions of this Court:

“(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:

“To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

(Emphasis supplied)

(B)……………..

21-23. ……………..

Acquiescence

We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other.

Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis.”

(C) Chairman, State Bank of India v M J James, (2022) 2 SCC 301:

What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non- existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case.

xxx

In Ram Chand v. Union of India [Ram Chand v. Union of India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action.

The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 1213).

“12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 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 summarised above, the respondents are guilty since the respondents have 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 whiled it 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 repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?”

Before proceeding further, it is important to clarify distinction between “acquiescence” and “delay and laches”. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See “Introduction”, U.N. Mitra, Tagore Law Lectures — Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence.

Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.”

In Marinmoy Maity versus Chanda Koley & Ors. AIR 2024 SC 2717, the Hon’ble Apex Court held that an applicant who approaches the Court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from deep slumber ought not to be granted the extraordinary relief by the writ Courts. Delay or laches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action. Relevant portion from the decision is as under: -

“9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.

For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and laches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal and others v. State of W.B and others. (2009) 1 SCC 768, has held to the following effect:-

“56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , Durga Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC 185] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84] ).

There is no upper limit and there is no lower limit also when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose." ”

The ratio of above decisions apply to the facts of the instant case. In view of above, the impugned orders cannot be said to be suffering from any error. The claim of the petitioners at this belated stage suffers from unexplained delay, laches and acquiescence. Hence, these writ petitions fail and are dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of