At, High Court of Rajasthan Jaipur Bench
By, THE HONOURABLE MR. JUSTICE ANUPINDER SINGH GREWAL
For the Petitioner: P.K. Sharma, Advocate. For the Respondents: Virendra Lodha, Senior Advocate with Ankit Jain, Advocate.
1. The instant writ petition is directed against the order dated 28/05/1996 (Ann.3) passed by the respondents whereby, the petitioner has been denied the benefit of notional pay fixation.
2. The facts of the case, briefly stated, are that petitioner was appointed as Conductor with the Rajasthan State Road Transport Corporation on 01/08/1975. His services were terminated on 17/10/1978 on the charge that he had not issued tickets even though payment had been collected from three passengers. He challenged the order of termination before the Labour Court. The Labour Court vide award dated 10/01/1983 directed that instead of dismissal, petitioner is liable to be punished with stoppage of two annual grade increments without cumulative effect, and he has to be reinstated with continuity in service but without back wages.
3. Learned counsel for the petitioner has contended that although Labour Court had directed that two annual grade increments without cumulative effect of the petitioner should be withheld but the respondents have even withheld the future increments, which is not permissible. He has further contended that respondents themselves had issued Circular on 13/11/1986 (Ann.1), wherein it was decided to grant benefit of notional fixation to an employee, who had been reinstated without back wages by an award of the Labour Court. In support of his submission, he has relied upon judgment of this Court in Sri Sanatan Dharm Shastri Sanskrit Mahavidyalaya v. The State of Rajasthan & Ors. [S.B. Civil Writ Petition No. 3196/2003, decided on 12.03.2013], the judgment of Punjab and Haryana High Court in Harpal Singh v. The State of Haryana & Ors. [C.W.P. No. 4825/2010, decided on 06.09.2012], judgment of the Delhi High
Please Login To View The Full Judgment!
Court in Mahabir Prasad v. Delhi Transport Corporation [W.P. (C) No. 2216/2014, decided on 23.07.2014], and the judgment of Hon'ble Supreme Court in Baldev Singh v. Presiding Officer, Labour Court, Patiala & Anr. [AIR 1987 SC 104].4. Per contra, the learned senior counsel for the respondents has submitted that petitioner is not entitled to any benefit of increments as the Labour Court has not given any actual benefit to the petitioner from the date of reinstatement and thus, no arrear was also permissible to the petitioner. The petitioner has already been granted the benefit of continuity in service without back wages.5. I have heard learned counsel for the parties and perused the record.6. It is apparent form perusal of the record that the petitioner was charged with having obtained fare from the passengers without issuance of tickets to them. This charge is rather grave and it has been held by the Hon'ble Supreme Court of India in several pronouncements that the only punishment, which is proper for such misconduct, is dismissal from service and any punishment less than dismissal would be grossly inadequate. Reference can be made to the judgment of the Hon'ble Supreme Court of India in the case of Rajasthan State Road Transport Corporation v. Bajrang Lal [2014 (4) SCC 693], wherein, while dealing with a similar case of Conductor, who was found carrying passengers without tickets, held that only punishment in case of proved corruption is dismissal from service. It was held in paras 21 to 23 hereunder:"21. As regards the question of disproportionate punishment is concerned, the issue is no more res-integra. In U.P. SRTC v. Suresh Chand Sharma [(2010) 6 SCC 555], it was held as under:"22. In Municipal Committee, Bahadurgarh v. Krishnan Behari [AIR 1996 SC 1249], this Court held as under: (SCC p. 715, para 4)"4. … In a case of such nature indeed, in cases involving corruption there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant."Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam [AIR 1975 SC 2025], U.P. SRTC v. Basudeo Chaudhary [(1997) 11 SCC 370], Janatha Bazar (South Kanara Central Coop. Wholesale Stores Ltd.) v. Sahakari Noukarara Sangha [(2000) 7 SCC 517], Karnataka SRTC v. B.S. Hullikatti [AIR 2001 SC 930] and Rajasthan SRTC v. Ghanshyam Sharma [(2002) 10 SCC 330]."22. In view of the above, the contention raised on behalf of the respondent employee, that the punishment of removal from service is disproportionate to the delinquency is not worth acceptance. The only punishment in case of the proved case of corruption is dismissal from service.23. As a result, the appeal succeeds and is allowed. The judgments of the courts below are set aside and the order of removal from service passed by the Disciplinary Authority is restored. No order as to costs."7. It is, thus, patent that once such serious charge of misconduct has been proved, the Labour Court ought not to have taken a lenient view in the matter by directing reinstatement. However, as the order of the Labour Court directing reinstatement has not been assailed by the respondents, I do not dwell upon any further on this aspect. Nevertheless, this is certainly a factor, which this Court will take into consideration while adjudicating the matter in the extraordinary writ jurisdiction. This jurisdiction is discretionary, and this Court would deny the relief to the petitioner if it would not be permissible and inequitable in the peculiar facts and circumstances.8. It is also noteworthy that although the petitioner had been reinstated in the year 1983 and the respondents are stated to have issued the Circular on 13/11/1986 (Ann.1) for grant of notional fixation, the petitioner has approached this Court only in the year 1999. It is, thus, palpably clear that the petitioner had waited for over a decade in approaching the Court, which is also indicative of the fact that petitioner would have accepted the implementation of the award in the manner adopted by the respondents. In case, the petitioner was aggrieved due to non-implementation of any benefit granted to him by the Labour Court, he should have promptly taken recourse to law including approaching the Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947. It is also well settled that the employee, who sleeps over his rights and has accepted the action of the respondents for such a long period, is not entitled to turn around and challenge the same after a period of 12 years.9. Reference can be made to the judgment of Hon'ble Supreme Court in the case of Eastern Coalfields Ltd. v. Bajrangi Rabidas [2014 (13) SCC 681], wherein it was held as under:"19. The controversy can be viewed from another angle. Thereafter, the learned Judges opined that there is no justification in the proposition that principle of estoppel would not apply in such a situation. As is manifest, in the case at hand the respondent stated this on the higher side to gain the advantage of eligibility and hence, we have no trace of doubt that principle of estoppel would apply on all fours. It is well settled in law that jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power of the High Court is required to be exercised "to reach injustice wherever it is found". In Sangram Singh v. Election Tribunal, it has been observed that jurisdiction under Article 226 of the Constitution is not to be exercised whenever there is an error of law. The powers are purely discretionary and though no limits can be placed upon that discretion, it must be exercised along recognised lines and not arbitrarily and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in such class of cases unless substantial injustice has ensued or is likely to ensue. That apart, the High Court while exercising the jurisdiction under Article 226 of the Constitution can always take cognizance of the entire facts and circumstances and pass appropriate directions to balance the justice. The jurisdiction being extraordinary it is required to be exercised keeping in mind the principles of equity. It is a well-known principle that one of the ends of equity is to promote honesty and fair play. If a person has taken an undue advantage the court in its extraordinary jurisdiction would be within its domain to deny the discretionary relief. In fact, Mr. Singh, learned Senior Counsel for the appellants, has basically rested his submission on this axis. In our considered opinion, the Division Bench has erred in extending the benefit to the respondent who had taken undue advantage by not producing the Matriculation Certificate solely on the motive to get an entry into service. It is apt to note here that this court in Bharat Coking Coal Ltd. v. Shib Kumar Dushad has ruled that the decision on the issue of date of birth of an employee is not only important for the employee but for the employer also."10. Reference can also be made to the judgment of Hon'ble Supreme Court in Chennai Metropolitan Water Supply and Sewerage Board & Ors. v. T.T. Murali Babu [(2014) 4 SCC 108], wherein it was held as under:"13. First, we shall deal with the facet of delay. In Maharashtra SRTC v. Balwant Regular Motor Service [AIR 1969 SC 329], the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp [(1874) LR 5 PC 221], which is as follows:"11. ....'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 limitations, 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."14. In State of Maharashtra v. Digambar [(1995) 4 SCC 683], while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that:"19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct."15. In State of M.P. and Ors. v. Nandlal Jaiswal and Ors. [AIR 1987 SC 251], the Court observed that:"24. .....it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic."It has been further stated therein that:"24. ... If there is inordinate delay on the part of the Petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction.Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.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.17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinise whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the Respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons-who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."11. The cases cited by the counsel for the petitioner are distinguishable on facts from the instant case. In the case of Sri Sanatan Dharm Shastri Sanskrit Mahavidyalaya (supra), the petition was directed against the award whereby the petitioner was reinstated, as termination was held to be illegal. The Management had pleaded it to be a case of abandonment. During the pendency of the petition, the workman had been reinstated, but paid only daily wages. It was in such circumstances, that the Court did not interfere with the findings as scope of interference under Article 227 of the Constitution of India is limited, and he was held to be entitled to regular pay scale from the date of reinstatement as well as arrears and notional fixation from the date of application before the Tribunal.s12. In Harpal Singh v. The State of Haryana & Ors. (supra), the petitioner therein, who was earlier working as a Clerk, had subsequently been selected as Taxation Inspector, which had been quashed by the Court. The Court had directed his reinstatement in terms of another judgment wherein it was held that he had lien over the earlier appointment, and was held to be entitled to monetory benefits from the date of termination till reinstatement. It was later clarified in this judgment that the petitioner shall be entitled to notional fixation of his pay along with increments.13. The judgment in the case of Mahabir Prasad v. Delhi Transport Corporation (supra) pertains to a case where the award was passed in favour of the petitioner directing reinstatement with continuity of service, but without back wages. The petitioner had been reinstated but increments were not paid. It was held that the petitioner be given notional increments for the period he was out of service.14. In Baldev Singh v. Presiding Officer, Labour Court, Patiala & Anr. (supra), the order, passed by the Labour Court granting relief of reinstatement with continuity of service but without any back wages, was upheld.15. Thus, these judgments are not applicable to the instant case and the petitioner cannot derive any benefit from them especially when this Court is not inclined to grant any relief to him.16. Therefore, in the light of aforementioned facts and circumstances, I have no hesitation in holding that the petitioner is not entitled to any indulgence in exercise of extraordinary writ jurisdiction.17. In the result, this petition is dismissed being devoid of any merit.Writ Petition dismissed.
"2016 (2) WLC 224, 2016 (4) SLR 283, 2016 (3) RAJLW 1846, 2015 (31) SCT 549,"