The Office In Charge Naval Officers Mess Annex Noma vs Shri Surya Bhan Singh & Anr.

“3.

This petition has been filed after fifteen months of the order being passed. Counsel for petitioner shall make submission as to why notice should be issued in this matter, considering the laches in question.”

“We are of the view that so far as writ petition under Article 226 of the Constitution is concerned, there can be no hard and fast rule of 90 days by way of period of limitation but the general rule of laches alone can be applied and this must necessarily depend on the facts and circumstances of each case. The High Court has said in its order that “the writ petition was beyond time by 136 days. Neither the explanation of 136 days nor the explanation for filing it today, was given.” This view does not appear to be correct because the High Court has proceeded on the assumption that there is a period of limitation of 90 days and unless sufficient cause is shown as contemplated under Section 5 of the Limitation Act a writ petition filed after the expiration of 90 days is liable to be rejected. This assumption is wholly unjustified. There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution. It is in fact doubtful whether any such period of limitation can be prescribed by law. In any event one thing is clear and beyond doubt that no such period of limitation can be laid down either under rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner. We would, therefore, set aside the order of the High Court and remand the writ petition to the High Court so that the High Court may dispose it of on merits in accordance with law. We accordingly allow the appeal, set aside the judgment and order of the High Court and direct that the writ petition may be disposed of by the High Court on merits in accordance with law. There will be no order as to costs.”

“9.

Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that the writ petitioner ought to have been non-suited or in other words the 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 borne 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.

10.

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 straitjacket 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.

11.

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, inasmuch 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.

12.

This Court in Tridip Kumar Dingal v. State of W.B. [Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] has held to the following effect: (SCC p. 784, paras 56-58)

“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.

57.

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 [State of M.P. v. Bhailal Bhai, (1964) 15 STC 450 : 1964 SCC OnLine SC 10 : (1964) 6 SCR 261 : AIR 1964 SC 1006] , Moon Mills Ltd. v. Industrial Court [Moon Mills Ltd. v. Industrial Court, 1967 SCC OnLine SC 117 : AIR 1967 SC 1450] and Bhoop Singh v. Union of India [Bhoop Singh v. Union of India, (1992) 3 SCC 136] ). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110 : (1970) 25 STC 289] , Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185] and Rabindranath Bose v. Union of India [Rabindranath Bose v. Union of India, (1970) 1 SCC 84] ).

58.

There is no upper limit and there is no lower limit as to 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.”

13.

It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder: (SCC pp. 325-26, paras 6-9)

“6.

Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185] . Of course, the discretion has to be exercised judicially and reasonably.

7.

What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [Lindsay Petroleum Co. v. Prosper Armstrong Hurd, (1874) LR 5 PC 221 : 22 WR 492] (LR PC at p. 239) was approved by this Court in Moon Mills Ltd. v. Industrial Court [Moon Mills Ltd. v. Industrial Court, 1967 SCC OnLine SC 117 : AIR 1967 SC 1450] and Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, 1968 SCC OnLine SC 54 : (1969) 1 SCR 808 : AIR 1969 SC 329] . Sir Barnes had stated: (Lindsay Petroleum case [Lindsay Petroleum Co. v. Prosper Armstrong Hurd, (1874) LR 5 PC 221 : 22 WR 492] , LR pp. 239-40) ‘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 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 it relates to the remedy.’

8.

It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India [Rabindranath Bose v. Union of India, (1970) 1 SCC 84] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

9.

It was stated in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”

14.

Reiterating the aspect of delay and laches would disentitle the discretionary relief being granted, this Court in Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu [Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] has held: (SCC p. 117, para 16)

“16.

Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.”

“3.

That it is humbly submitted that impugned order was passed on 04.12.2023. Since, there is no appeal provided under the Minimum Wages Act, 1948, and the order of the Adjudicating Authority was obtained by misleading and suppressing the facts a decision of the Competent Authority at Naval HQs was required to be obtained for filing a writ petition before this Hon’ble Court.

4.

That, obtaining approval of the Competent Authority by processing the file through various agencies took considerable time and finally the approval for filing the present writ petiton was obtained. It is submited meanwhile the office shifted to African Avenue and thereafter, in stepwise the documents shifted from old office to new office. Thereafter, in the absence of proper records and transfer the matter could not be filed at the earliest.

5.

That, subsequent to approval for filing writ petition conferences were held with the counsel for preparation of writ petition and filing the same before this Hon’ble Court. It is humbly submitted that on the documents necessary for preparing the writ petition were submitted to the counsel in the month of 17.10.2024 and the counsel was requested to prepare the writ petition exepdtiously.

6.

That, the certain documents have been misplaced and the Writ Petition could not be prepared. The counsel requested for another set of documents for preparation of the writ petition. Accordingly, the documents were submitted to the counsel once again for preparation of the writ petition.

7.

That, after the vetting of the draft writ petition by the concerned officials of the petitioner, the same has been filed before this Hon’ble Court on 17.10.2024 and thereafter, there was delay in refiling after curing all defects.”

“212.

The law as it presently stands, post the decision of Postmaster General (supra), is unambiguous and clear. Condonation of delay is to remain an exception, not the rule. Governmental litigants, no less than private parties, must demonstrate bona fide, sufficient, and cogent cause for delay. Absent such justification, delay cannot be condoned merely on the ground of the identity of the applicant.

213.

From a combined reading of Bal Kishan Mathur (supra) and Sheo Raj Singh (supra) it is equally manifest that the ratio of Postmaster General (supra) is, in essence, twofold. First, that State or any of its instrumentalities cannot be accorded preferential treatment in matters concerning condonation of delay under Section 5 of the Limitation Act. The State must be judged by the same standards as any private litigant. To do otherwise would not only compromise the sanctity of limitation. The earlier view, insofar as it favoured a liberal approach towards the State or any of its instrumentality is no more the correct position of law. Secondly, that the habitual reliance of Government departments on bureaucratic red tape, procedural bottlenecks, or administrative inefficiencies as grounds for seeking condonation of delay cannot always, invariably accepted as a “sufficient cause” for the purpose of Section 5 of the Limitation Act. If such reasons were to be accepted as a matter of course, the very discipline sought to be introduced by the law of limitation would be diluted, resulting in endless uncertainty in litigation.

214.

What has been conveyed in so many words, by the decision of Postmaster General (supra) is that while excuses premised solely on bureaucratic lethargy cannot, by themselves, constitute sufficient cause, there may nonetheless be circumstances where the explanation offered, though involving bureaucratic procedures, reflects a genuine and bona fide cause for the delay. In such instances, the true test is whether the explanation demonstrates that the State acted with reasonable diligence and whether the delay occurred despite efforts to act within time. Where such bona fides are established, the Court retains the discretion to condone the delay.

215.

In other words, Postmaster General (supra) does not shut the door on condonation of delay by the State in all cases involving bureaucratic processes. The real distinction lies between a case where delay is the result of gross negligence, inaction, or casual indifference on the part of the State, and a case where delay has occurred despite sincere efforts, owing to the inherent complexities of governmental decision-making. While the former category must necessarily be rejected to uphold the discipline of limitation, the latter can still attract judicial indulgence where public interest is at stake and the cause is shown to be reasonable.

216.

In this regard, the vital test that has to be employed, wherever “sufficient cause” is sought to be demonstrated on the ground of bureaucratic inefficiencies is to distinguish between whether the same is an “explanation” or an “excuse”. Although the two may appear to be one and the same, yet there exists a fine but pertinent distinction between an “excuse” and an “explanation”.

217.

As illustrated in Sheo Raj Singh (supra) an “excuse” is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an “excuse” would imply that the explanation proffered is believed not to be true. An

“explanation” on the other hand would demonstrate genuineness in actions and reasons assigned, and would other wise be devoid of any gross negligence, deliberate inaction or lack of bona fides, or indifference or casualness in conduct. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts.

218.

However, equally important to note is that wherever, any explanation is sought to be given on account of bureaucratic lethargy and inherent complexities of governmental decision-making, the same more often than not would invariably always is an “excuse”, as experience has shown us, depicted from a long line of decisions of this Court. It is at this stage, where the decision of Postmaster General,(supra) assumes significance. It seeks to convey the messages, that court should not be agnostic, to how the State or its instrumentalities, often tend to take the recourse of condonation of delay in a casual manner.

219.

Which is why, as per the ratio of Postmaster General (supra) and a plethora of other subsequent decision, the ordinary approach of the courts, in cases where delay is sought to be condoned by offering the explanation of bureaucratic lethargy or red-tapism, must be one of circumspection and reluctance. The courts ought to loathe in accepting such explanations as “sufficient cause”. They should apply their minds carefully, be slow in condoning delays on such reasons, and exceptional instances, where the explanation is found to be genuine, reflective of reasonable vigilance and promptitude in conduct, and free from gross negligence, deliberate inaction, lack of bona fides, or casual indifference, should such an explanation be accepted.

(Emphasis supplied)

“6.

It is submitted that the letter clarifying the rates of payment of minimum wages to casual labour engaged in Central Government Offices/ Organisation (Ministry of Defence ID No 2 (i) 2011 dated 29th Jun 2011 letter, copy enclosed) was received post completion of the contract for Hiring of Security Services at NOMA Kota House. It is further submitted that extra budget for the rate revision wrt difference between the wages of the Central Government and the State Government will be put up to Competent Financial Authority post concurrence of PIFA (N) for budget allocation and the difference in wages will be paid to the security agency with which contract was signed for further disposal to the complainant, as the contract for providing of security services at NOMA Kota House has been completed on 31 Mar 21.”

“The applicant was working with opponents as Security Guard. It is falling under Scheduled Employment for the purpose of Minimum. Wages Act 1948. There is no dispute regarding Employee Employer relationship or Jurisdiction. Op2 (PE) has agreed that they have not pad Minimum wage of central government during the proceedings and submitted in writing. They have followed the Minimum wage of NCT of Delhi, though the central government is the appropriate government. Op l has entered into a contract to pay Minimum wage of NCT of Delhi with Op2. Op2 has submitted that difference in wages will be paid after getting approval from competent financial authority But no action has been taken till date.” Under these circumstances, the following order is being issued:

ORDER

1.

The application is allowed.

2.

Op1 and Op2 are liable to pay the difference in minimum wages amounting to Rs. 54,317 (Rupees Fifty four thousand three hundred seventeen only) along with two times compensation. Total amount to be paid is Rs.1,62,951 (Rupees one lakh sixty two thousand nine hundred fifty one).

3.

Above amount is to be paid in the name of employee to the authority in the form of Demand Draft within fifteen days from the date of receipt of this order.

4.

Any failure to comply with this order may result in initiation of recovery proceedings without any further notice.

5.

No costs are awarded in this matter.

6.

The claim application is hereby resolved and dispose of.”