Telangana High Court
T. Eshwaraiah, vs The A.P.S.R.T.C., on 6 September, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
THE HON'BLE THE CHIEF JUSTICE SHRI PINAKI CHANDRA GHOSE
THE HON'BLE SHRI JUSTICE VILAS V. AFZULPURKAR
AND
THE HON'BLE SHRI NOUSHAD ALI
W.A.No.1411 OF 2012, W.P.Nos.6449 of 2011, 16435, 25050, 22704,
23873, 24901, 28641, 28776, 30656, 30658 and 31409 of 2012
DATED:15.2.2013
W.A. NO.1411 OF 2012
Between:
P.V. Narayana ... Appellant
And
A.P. State Road Transport Corporation
Rep. by its Managing Director
Musheerabad
Hyderabad
and others ... Respondents
THE HON'BLE THE CHIEF JUSTICE SHRI PINAKI CHANDRA GHOSE
THE HON'BLE SHRI JUSTICE VILAS V. AFZULPURKAR
AND
HON'BLE SHRI JUSTICE NOUSHAD ALI
W.A.No.1411 OF 2012, W.P.Nos.6449 of 2011, 16435, 25050, 22704,
23873, 24901, 28641, 28776, 30656, 30658 and 31409 of 2012
ORDER:
(Per the Hon’ble the Chief Justice SHRI PINAKI CHANDRA
GHOSE)
***
Question involved in this batch of cases for resolution by Full Bench
referred to by a learned single Judge is, whether the appellate or revisional
authority of the Andhra Pradesh State Road Transport Corporation (for short
‘the Corporation’) is justified in declining to entertain an appeal or revision
preferred by an employee of the Corporation against the order imposing
punishment of stoppage of annual grade increment(s) with cumulative effect
on the ground of inordinate delay in preferring the appeal or revision
notwithstanding that such punishment which was held to be a major penalty
as per the law laid down by the Supreme Court in KULWANT SINGH
[1]
GILL v. STATE OF PUNJAB cannot be sustained in law as no detailed
procedure contemplated under the APSRTC Regulations for award of a
major punishment has been followed. Question also arises for consideration
whether the Writ Court can decline to entertain a writ petition in similar
circumstances?
2. The appellant in W.A.No.1411 of 2012 and the petitioners in the other
writ petitions are either Conductors or Drivers or other employees working in
the A.P. State Road Transport Corporation. On certain cash and ticket
irregularities or on certain other charges proceedings were initiated against
them which ended in imposing the penalty of deferring annual grade
increment(s) which have the effect on future increments. The appeals and
revisions preferred by some of them against the orders of punishment were
rejected on the ground of delay. Some of them have not preferred
appeals/revisions but filed the Writ Petitions directly with inordinate delay. In
some cases it was contended that no orders are passed on the
appeal/revision. We have gone through all the writ petitions and we find that
in effect in all these cases the delay ranges from 5 years to 18 years either
in preferring the appeal or revision or filing a writ petition under Article 226
of the Constitution of India.
3. In W.P.No.16435 of 2012 the workman who was working as conductor
was inflicted with the punishment of stoppage of one increment for one year
which has the effect on his future increments by order dated 24.6.1992. The
appeal which was filed in the year 2007 after a lapse of 15 years was
dismissed by the appellate authority and the revision was also rejected on
17.5.2007. Subsequently, on filing a dispute before the Conciliation Officer,
the Commissioner of Labour referred the matter for adjudication to the
Labour Court under section 10 of the Industrial Disputes Act by proceedings
dated 18.9.2010, which was dismissed. The Labour Court held that
stoppage of increment with cumulative effect is not a major punishment
under the APSRTC Regulations and the workman has also failed to explain
the inordinate delay in preferring the dispute before the Conciliation Officer
and accordingly dismissed the Industrial Dispute. Aggrieved by the same
the workman has filed the aforementioned writ petition.
4. The learned single Judge by the order under reference dated
17.7.2012 held that withholding of increment with cumulative effect is a
major punishment under the APSRTC Regulations and the Labour Court
committed an error in holding that stoppage of increment with cumulative
effect is a minor penalty.
5. Though, in this reference, we are not concerned with the said
question, we may briefly refer to the said issue as the same has relevance
to the core issue referred to for resolution. Regulation 8(1)(iv) of
A.P.S.R.T.C. Employees Regulations, 1967 (for short ‘the Regulations’)
provide for imposing of penalty of withholding of increments. Clause (1) of
Regulation 12 provides that the punishments covered by Regulation 8(1)(i)
to 8(1)(vi) shall not be imposed except after the employee concerned is
informed in writing of the proposal to take action against him and of the
allegations on which action is proposed to be taken and is given an
opportunity to make any representation he may wish to make and such
representation, if any, is taken into consideration by the authority imposing
the penalty. Clause (2) of Regulation 12, however, provides that no order
imposing any of the penalties specified in items (vii) to (ix) of Clause (1) of
Regulation 8 shall be passed on an employee except after an enquiry is
held as far as may be in the manner provided. Regulation 8(1)(iv) does not
specify whether withholding of punishment is with cumulative or without
cumulative effect. Clause 1(vii) of Regulation 8 provides the penalty of
reduction to a lower rank in the seniority list or to a lower post or time scale,
whether in the same class of service or in another class, or to a lower stage
in a time scale.
6. In Kulwant Singh Gill’s case (1 supra) the Supreme Court held that
withholding of an increment which had the effect of reduction to a lower
stage in the time scale was a major penalty and required prior enquiry.
Therefore, it would be incumbent on the part of the Corporation to conduct a
detailed enquiry before imposing the penalty of withholding of increments
with cumulative effect. In the present cases herein the Corporation has not
conducted any enquiry as required in law but imposed the major penalty of
withholding of increments with cumulative effect.
7. Before the Labour Court the Judgment of the Supreme Court in
Kulwant Singh Gill’s case was not considered. The Labour Court
Considering the decision of the Supreme Court in SLP(C) No.9268 & 9201
of 1993 dated 19.8.1994 (Executive Director, Syndicate Bank & others v.
K.C. Arya and another) wherein the regulation of the Bank specifically
provided that withholding of increment with or without cumulative effect is a
minor penalty, held that the punishment imposed is a minor penalty.
8. In Y. RANGAREDDY v. THE A.P.S.R.T.C. NIZAMABAD REGION,
[2]
REP. BY ITS REGIONAL MANAGER, NIZAMABAD a learned Judge of
this Court following the law laid down in Kulwant Singh Gill’s case held
that withholding of increments simpliciter is a minor punishment under
Regulation 8(1)((iv) of the Regulations, but once such withholding of
increments is to have effect on future increments, it would amount to a
major punishment and fall under Regulation 8(1)(vii). Obviously, because
such punishment would amount to reduction to a lower stage specified in
Clause 1(vii) of Regulation 8 in a time scale, in which event, Clause (2) of
Regulation 12 will come into cooperation which says that no order imposing
penalties specified in items (vii), (viii) and (ix) of clause (1) of Regulation 8
shall be passed except after an enquiry is held. As held by the Supreme
Court in Kulwant Singh Gill’s case imposing of punishment of withholding
of an increment which has effect on future increments amounts to a major
punishment and the same cannot be imposed without conducting a prior
enquiry.
Therefore, the Division Bench held that withholding of an increment
which has effect on future increments amounts to a major punishment under
the APSRTC’s Regulations, requiring prior enquiry.
A Division Bench of this Court dealing with a batch of cases in
DEPOT MANAGER, APSRTC, ANANTAPUR DISTRICT v. K. ADI
[3]
REDDY affirmed the said principle. In the said batch of cases, writ
petitions were filed with delay and without availing the remedy of appeal
under Regulations 22 and 29 of the Regulations. On the question of delay
and alternative remedy available, the Division Bench, however, held that
since the impugned punishment of stoppage of increments with cumulative
without conducting an enquiry is wholly unsustainable and affects
substantive rights of the employees, there cannot be any bar under Article
226 to grant the relief.
9. After referring to the above decisions, the learned single Judge by the
order under reference dated 17.7.2012 passed in W.P.No.16435 of 2012
held that under the APSRTC’s Regulations withholding of an increment
with cumulative effect would be a major penalty, therefore, the Labour Court
ought not to have taken a contrary view by relying upon the Regulations of
Syndicate Bank which have no application to the Corporation and to the
said extent the order of the Labour Court is not justified.
10. As already said, in this reference, we are not concerned with the
question and in fact there are no conflicting decisions on the said issue.
However, on the question of delay in preferring a dispute or filing an appeal
or revision by the workman, referring to the decision in DEPOT MANAGER,
APSRTC, ANANTAPUR DISTRICT v. K. ADI REDDY (3 supra) and
decisions of two Division Benches of this Court in REGIONAL
MANAGER, APSRTC, RAJAHMUNDRY REGION, EAST GODAVARI
[4]
DISTRICT v. K. SATYANARAYANA and THE APSRTC, REP. BY ITS
[5]
REGIONAL MANAGER, ADILABAD TOWN v. SD. ESA ALI , finding
that conflicting views were expressed by the Division Benches of this Court
on the issue and opining that the same need to be reconciled by way of a
comprehensive adjudication as to how belated claims arising in the context
of the law laid down in Kulwant Singh Gill’s case should be dealt with on
principle directed the Registry to place the matter before the Hon’ble the
Chief Justice as to the posting of the case before an appropriate Bench.
That is how the matters have been referred to this Full Bench.
It may be noted that when Adi Reddy’s case was carried to the
Supreme Court, the Supreme Court, while declining to interfere with the
order of the Division Bench of this Court, however, left the question of law
open for resolution in an appropriate case clarifying that the said order does
not constitute a binding precedent.
11. Before we deal with the issue, to the extent relevant, the order of
reference of the learned single Judge in W.P.No.16435 of 2012 may be
quoted:
“Admittedly, the order of punishment in the present case was passed on
24.6.1992. The petitioner having suffered the same chose to remain silent till
the year 2007. His appeal and thereafter, his revision, were filed in quick
succession during the said year and the same having met with failure, the
issue was raised before the Conciliation Officer in the first instance and then
referred to the Labour Court. The claim statement filed by the petitioner does
not reflect any reason being furnished by him to explain this delay. Though
the law of limitation would not apply to applications filed under the Industrial
Disputes Act, 1947, in the light of the law laid down by the Supreme Court in
AJAIB SINGH v. SIRHIND COOP. MARKETING-CUM-PROCESSING
[6]
SERVICE SOCIEITY LIMITED , the delay in the present case is not in
approaching the Labour Court but in challenging the order of punishment
before the appellate authority. Therefore, the said principle would have no
application to the case on hand.
In K. ADIREDDY the Division Bench was dealing with a batch of cases
which arose in the context of the ratio decidendi in Kulwant Singh Gill and the
procedure followed by the APSRTC while withholding increments with
cumulative effect. There was substantial delay on the part of the workmen in
seeking redressal of their grievance in most of the cases. For instance, in
Writ Appeal No.340 of 2006 pertaining to K. Adi Reddy, the order withholding
his increment with cumulative effect was passed without enquiry on
22.9.1994, while the writ petition challenging the same was filed by him in
October, 2005, eleven long years thereafter. The learned single Judge had
allowed the writ petition applying Kulwant Singh Gill. In its appeal before the
Division Bench, the APSRTC specifically contended that the learned single
Judge ought to have denied relief on the ground of delay. Dealing with this
contention, the Division Bench observed that the APSRTC could not take
recourse to action which was contrary to law and affected the substantive
rights of its employees; and when such impugned action was wholly
unsustainable, there could not be any bar for exercise of extraordinary
jurisdiction by this Court under Article 226 of the Constitution.
Pertinent to note, the earlier judgment of another Division Bench of this
Court in REGIONAL MANAGER, APSRTC, RAJAHMUNDRY REGION,
EAST GODAVARI DISTRICT v. K. SATYANARAYANA was not
considered in K. Adireddy. The facts of that case were that the APSRTC had
withheld two annual increments of the workman with cumulative effect. No
enquiry was held prior thereto. The law laid down in Kulwant Singh Gill
therefore applied on all fours to the case. However, there was a delay on the
part of the workman in seeking redressal. The APSRTC’s order withholding
his increment was passed on 25.5.1999 but he challenged the same before
this Court only in the year 2005. There was thus a delay of six years. The
Division Bench held that there were no bona fides on the part of the
respondent in approaching the court after the lapse of six years and denied
him relief.
Again in THE APSRTC, REP. BY ITS REGIONAL AMANAGER,
ADILABAD v. SD. ESA ALI another Division Bench of this Court dealt at
length with the effect of delay on the scope of judicial review under Article 226
of the Constitution. That was also a case which involved application of the
ratio in Kulwant Singh Gill and the learned single Judge had allowed the writ
petition, following the same. But there was a delay of 13 years on the part of
the workman in challenging the order withholding his increments with
cumulative effect. When reliance was sought to be placed on K. Adireddy’s
case the Division Bench observed that it was not persuaded to agree with the
learned counsel for the workman that the relief granted by the learned single
Judge ought not to be disturbed. The Division Bench further observed that the
unexplained delay of 13 years was fatal to the cause of the workman and the
learned single Judge ought not to have entertained the writ petition much less
allowed the same. The Division Bench observed that the workman did not
make an endeavor to explain the delay and his counsel could not offer any
justification for his client’s silence for more than one decade.
Though K. Adireddy was confirmed by the Supreme Court in DEPOT
[7]
MANAGER, APSRTC v. K. ADI REDDY the order dated 26.4.2012
passed therein reads as follows:
“Having heard the learned counsel for the parties and after perusal of the
impugned orders passed by the learned Single Judge as also by the Division
Bench of the High Court of Andhra Pradesh Bench at Hyderabad, we are of
the considered opinion, that no case is made out for interference with the said
orders. These special Leave Petitions are accordingly dismissed.
However, the question of law reflected are left open to be considered in an
appropriate case.”
As the Supreme Court left the question of law open for resolution in an
appropriate case, this Order does not constitute a binding precedent.
Thus, as matters stand, there is no consistency in how this court deals with
the delay in claims covered by the ratio in Kulwant Singh Gill. A delay of 6
years was considered fatal in K. Satyanarayna, while in K. Adi Reddy, a delay
of 11 years did not disentitle the workman form claiming relief. In SD. Esa Ali,
a delay of 13 years was held to be fatal.
It is pertinent to note that in the present case also there is no explanation
forthcoming from the petitioner as to why he did not choose to file an appeal
for 15 long years. On facts, the case therefore stands on a worse footing than
SD. ESA ALI.
On the above analysis, the conflicting views expressed by the Division
Benches of this Court need to be reconciled by way of a comprehensive
adjudication on the issue as to how belated claims arising in the context of the
law laid down in Kulwant Singh Gill should be dealt with on principle. This
would be in the interests of the APSRTC as well as well as its workmen.
The Registry is therefore directed to place the matter before the Hon’ble the
Chief Justice for necessary orders as to the posting of this case before an
appropriate Bench.”
12. Subsequently, by various orders of the learned single Judge the other
writ petitions and W.A.No.1411 of 2012 were directed to be placed before
the Hon’ble the Chief Justice for posting the same before the appropriate
bench along with W.P.No.16435 of 2012.
13. In W.P.No.18811 of 2012 out of which W.A.No.1411 of 2012 arose the
petitioner filed the appeal against the order of the disciplinary authority with
delay of four years and two years thereafter the writ petition was filed. The
learned single Judge following the decision in SD. Esa Ali’s case (5 supra)
dismissed the writ petition taking the view that the petitioner failed to show
any diligence in espousing his cause thereby disentitled himself to the
indulgence under Article 226 of the Constitution of India.
14. Here, we are concerned with the delay in approaching the appellate
authority or the revisional authority or the writ court. In all the cases referred
to the Full Bench, the workmen filed the appeals or revisions or writ
petitions with inordinate delay. In some cases they have not approached
the appellate or revisional authority but filed the writ petitions after a lapse of
5 to 18 years.
15. We have heard the learned counsel for the parties and the learned
Standing Counsel for the Corporation.
16. It is vehemently contended by the learned counsel for the petitioners
that since the punishment of stoppage of increment with cumulative effect is
a major punishment as per the law laid down by the Supreme Court in
Kulwant Singh Gill’s case and the same has been imposed without
conducting an enquiry, the punishment cannot be sustained in law
notwithstanding that the workmen have not approached the appellate
authority or revisional authority or by raising an industrial dispute or filing a
writ petition.
It was further argued by the learned counsel for the petitioners that
since the punishment of withholding of increments with cumulative effect
without there being a prior enquiry is wholly unsustainable in law and has
infringed the substantive rights of the workmen the writ Court would be well
within its power if the delay is condoned in exercise of the extraordinary
jurisdiction under Article 226 of the Constitution of India, therefore, the
Division Bench in Adi Reddy’s case has rightly laid down the law. Learned
counsel for the petitioners placed reliance on various decisions of the
Supreme Court where the Writ Court would be justified in condoning the
inordinate delay in exercise of the power under Article 226 of the
Constitution of India.
On the other hand, the learned standing counsel for the Corporation
submitted that the Division Bench in ED. Esa Ali’s case after referring to
various decisions of the Supreme Court had declined to condone the
inordinate delay in approaching the appellate authority/revisional authority
as the delay has not properly been explained. It was further contended that
even though the punishment would be contrary to the Kulwant Singh Gill’s,
case, but since the workmen have approached the Court with inordinate
delay without cogent reasons or explanation, Court would not be justified if
the delay is condoned. Writ Court can exercise the discretion of condoning
the delay only in appropriate and exceptional cases where a party has
approached the Court within a reasonable period of delay which was
properly explained, but, not in every case, on the ground that punishment
would be contrary to Kulwant Singh Gills’s case. In Regional Manager,
APSRTC, Rajahmundry, EGDT v. K. Satyanarayana (4 supra) the
Division Bench has also declined to grant the relief. Therefore, the Division
Bench in Esa Ali’s case has correctly laid down the law. In support of their
contention, learned Standing Counsel has placed reliance on numerous
decisions of the Supreme Court.
We will refer to the decisions relied upon by the learned counsel for
the parties at the appropriate time.
17. Before we deal with the issue, we may refer to what the Regulations
of the Corporation provide for filing of appeal or revision. Regulation 22 of
the said Regulations in Part V provides for filing an appeal against the order
of the disciplinary authority. Regulation 23 which deals with period of
limitation for filing appeals says that no appeal under Part V shall be
entertained unless it is submitted within a period of two months from the
date on which the appellant receives a copy of the order appealed against.
The proviso thereunder provides that the appellate authority may, however,
entertain an appeal after the expiry of the said period if it is satisfied that the
appellant had sufficient cause for not submitting the appeal in time.
Regulation 29 of the Regulations provides that the authority higher
than the authority to which an appeal against an order imposing any of the
penalties specified in Regulation 8 of the Regulations may of its own motion
or otherwise call for the records of the case in a disciplinary proceeding,
revise any order in such a case and pass such orders as it deems fit, as if
the employee had preferred an appeal against such order. According to the
proviso (iii) thereunder no action under the said Regulation shall be initiated
more than six months after the date of the order to be revised.
Similarly, Regulation 30 provides that notwithstanding any thing
contained in the Regulations, the Board or any authority specified by it on its
behalf, may on its own motion or otherwise, after calling for records of the
case review any order which is made or is appealable under the
Regulations and (a) impose any penalty or confirm, modify or set aside the
order; or (b) remit the case to the authority made the order or to any other
authority, directing such further action or enquiry as it considers proper in
the circumstances of the case or (c) pass such other orders as it deems fit.
However proviso (iii) thereunder provides that no action under the said
Regulation shall be initiated more than one year after the date of the order to
be reviewed except in case of Officers in Class-I service and in case of
Officers in Class-I service no action under the said Regulation shall be
initiated more than two years after the date of the order to be reviewed.
Therefore, under the Regulations, two months period is provided for
filing an appeal against an order of the disciplinary authority and six months
period for filing a revision against an order to be revised are provided.
18. We will first refer to the decisions of the Division Benches of this Court
referred to by the learned single Judge in the order under reference.
I n Regional Manager, APSRTC, Rajahumundry Region, East
Godavari District v. K. Satyanarayana ( 4 supra) a Division Bench of this
Court denied the relief on the ground that there were no bona fides on the
part of the respondent in approaching the court. This decision was not
referred to by the Division Bench in Adi Reddy’s case which we have
already referred to.
In SD. Esa Ali’s case, the Division Bench held that there was no
endeavor to explain the delay and no explanation was offered for keeping
silence for more than a decade. The Division Bench placed reliance on
numerous decisions of the Supreme Court. The Division Bench has
considered the decisions of the Supreme Court in STATE OF MADHYA
[8]
PRADESH v. BHAILAL BHAI , TILOKCHAND MOTICHAND v H.B.
[9]
MUNSHI which was approved by a larger Bench in MAFATLAL
[10]
INDUSTRIES LTD. v UNION OF INDIA . The Division Bench noticed
that in service matters, the Courts have applied the rule of delay with greater
[11]
rigor in RABINDRANATH v UNION OF INDIA , P.S.
[12]
SADASIVASWAMY v. STATE OF TAMILNADU , ROSHAN LAL v.
[13] INTERNATIONAL AIRPORT AUTHORITY OF INDIA , GIAN SINGH [14] MANN v. HIGH COURT OF P & H , UNION OF INDIA v. S.S. [15] KOTHIYAL , PRAFULLA KUMAR PALLAI v. STATE OF [16] ORISSA , A.J. FERNANDIS v. DIVISIONAL MANAGER, S.C. [17] [18] RLY. , K.A. ABDUIL MAJEED v. STATE OF KERALA , U.P. JAL [19] NIGAM v. JASWANT SINGH and UTTARANCHAL FOREST [20] DEVELOPMENT CORPN. V. JABAR SINGH .
The Division Bench also found that in U.P. Jal Nigam v. Jaswant
Singh (19 supra), the Supreme Court considered the question whether the
High Court was justified in granting relief to the employees on the basis of
[21]
judgment in Harwindra Kumar v. Chief Engineer, Karmik , which says
that the employees of Jal Nigam are entitled to continue up to 60 years of
age, even though they had accepted the retirement and taken the monetary
benefits and approached the Court after long lapse of time. The Division
Bench held that the Supreme Court while allowing the appeals, has referred
[22]
to the earlier judgments in State of Karnataka v. S.M. Kotrayya ,
[23]
Jagdish Lal v. State of Haryana , Union of India v. C.K.
[24] [25]
Dharagupta , Govt. of W.B. v. Tarun K. Roy and culled out the
following statement of law contained in Halsbury’s Laws of England from
Halsbury’s Laws of England.
“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.”
19. The Division Bench also referred to the observations made by the
Supreme Court in U.P. Jal Nigam’s case invoking the principle of
acquiescence which are to the following effect:
“In view of the statement of law as summarized 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?”
After referring to the above decisions, Chief Justice Singhvi (as His
Lordship then was) speaking for the Division Bench in Esa Ali’s case held:
“The reason why the Courts are reluctant to give relief to a person who is
not vigilant in seeking remedy against the alleged wrong done to him or
violation of his legal, fundamental or other constitutional rights is that a
direction, order or writ issued after long lapse of time will unsettle the
settled rights or status of the parties or may cause injury to public interest.
In service matters and matters involving levy, recovery and collection of
tax, the rule of delay has been applied with greater rigour. This is perhaps
in recognition of the fact that a direction given by the Court after long lapse
of time for fixation of seniority or promotion would adversely affect not only
the rights of the individual employees, but the structure of the service. If a
punishment imposed by the competent authority is set aside after long
lapse of time, the employee who is benefited by reinstatement or otherwise
is bound to crave for consequential benefits including promotion to the
higher posts and if his claim is accepted, other persons who may or may
not be parties before the Court to the initial litigation are adversely affected.
In matters involving levy, collection and recovery of taxes, the public
interest normally outweighs the individual interest and the Courts are
extremely loath to exercise power in favour of a person who does not seek
intervention of the Court within reasonable time. This is also the reason
why the Courts have, while granting declaration of invalidity in the matter of
levy and collection of tax, by and large applied the theory of unjust
enrichment and refused to issue direction for refund of the tax already
collected.” (emphasis supplied).
Therefore, the Division Bench in Esa Ali’s case, referring to the
decisions of the Supreme Court, has in extenso dealt with the issue and
declined to condone the inordinate delay in filing the writ petition. I n Adi
Reddy’s case the legal position in regard to condoning of delay in the light
of the law laid down by the Supreme Court was not dealt with.
20. We will now refer to the case law under what circumstances the Writ
Court can condone the delay in approaching the Court against an order of
the disciplinary authority in exercise of the power under Article 226 of the
Constitution of India in the light of the decisions of the Supreme Court.
It is settled principle of law that the provisions of Limitation Act have
no application to the proceedings under Article 226 of the Constitution of
India and in justifiable cases, the Court, in exercise of its power under
Article 226, may condone the delay.
21. The learned counsel for the petitioners have placed reliance on
numerous decisions of the Apex court to contend that the High Court in
exercise of its discretionary power can grant the relief inasmuch as no
limitation has been prescribed for filing a writ petition under Article 226 of
the Constitution of India. It is true that this Court in exercise of its
extraordinary or discretionary power can condone the delay and grant any
relief. But the writ courts have evolved their own self imposed fetters or
restraints in entertaining the petitions filed after long lapse of time because
exercise of such discretion may affect the settled or crystallized rights of
thers.
[26]
22. In State of Maddhya Pradesh v. Bhailal Bhai a Constitution
Bench of the Apex Court considered the effect of delay in filing writ petition
under Article 226 of the Constitution of India in the context of the claim made
for refund of the illegally collected tax and held:
“17. At the same time we cannot lose sight of the fact that the special
remedy provided in Article 226 is not intended to supersede completely the
modes of obtaining relief by an action in a Civil Court or to deny defences
legitimately open in such actions. It has been made clear more than once
that the power to give relief under Article 226 is a discretionary power. This
is specially true in the case of power to issue writs in the nature of
mandamus. Among the several matters which the High Courts rightly take
into consideration in the exercise of that discretion is the delay made by the
aggrieved party in seeking this special remedy and what excuse there is
for it. Another is the nature of controversy of facts and law that may have to
be decided as regards the availability of consequential relief. Thus, where,
as in these cases, a person comes to the court for relief under Article 226
on the allegation that he has been assessed to tax under a void legislation
and having paid it under a mistake is entitled to get it back, the court, if it
finds that the assessment was void, being made under a void provision of
law, and the payment was made by mistake, is still not bound to exercise
its discretion directing repayment. Whether repayment should be ordered in
the exercise of this discretion will depend in each case on its own facts and
circumstances. It is not easy nor is it desirable to lay down any Rule for
universal application. It may however be stated as a general Rule that if
there has been unreasonable delay the court ought not ordinarily to lend its
aid to a party by this extraordinary remedy of mandamus. Again, where
even if there is no such delay the Government or the statutory authority
against whom the consequential relief is prayed for raises a prima facie
triable issue as regards the availability of such relief on the merits on the
grounds like limitation the court should ordinarily refuse to issue the writ of
mandamus for such payment. In both these kinds of cases it will be sound
use of discretion to leave the party to seek his remedy by the ordinary
mode of action in a Civil Court and to refuse to exercise in his favour the
extraordinary remedy under Article 226 of the Constitution.
21. ….Learned counsel is right in his submission that the provisions of
the Limitation Act do not as such apply to the granting of relief under Art
226. It appears to us however 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 be taken to be a reasonable standard by which
delay in seeking remedy under Article 226 can be measured. The court
may consider the delay unreasonable even if it is less than the period of
limitation prescribed for a civil action for the remedy but where the delay is
more than this period, it will almost always be proper for the court to hold
that it is unreasonable. (emphasis is ours).
[27]
23. In Tilokchand Motichand v. H.B. Munshi another Constitution
Bench of the Supreme Court held:
“Utmost expedition is the sine qua non for such claims. The party
aggrieved must explain satisfactorily all semblance of delay. No period can
be indicated which may be regarded as the ultimate limit of action for that
would taking upon itself legislative functions. In England a period of 6
months has been provided statutorily, but that could be because there is no
guaranteed remedy and the matter is one entirely of discretion. In India
each case will have to be considered on its own facts. Avoidable delay
affecting the merits of the claim, will disentitle a party to invoke the
extraordinary jurisdiction.
The question is one of discretion for this Court to follow from case to
case. This Court need not necessarily give the total time to the litigant to
move this Court under Article 32, even though he may be within statutory
limitation. Similarly in a suitable case this Court may entertain a petition
even after limitation. It will all depend on what the breach of the
Fundamental Right and the remedy claimed are and how the delay arose.”
24. In SMT. NARAYANI DEBI KHAITAN v. THE STATE OF
[28]
BIHAR , speaking for the Constitution Bench, Gajendragardkar, C.J (as
His Lordship then was) observed:
“It is well-settled that under Art.226, the power of the High Court to
issue an appropriate writ is discretionary. There can be no doubt that if a
citizen moves the High Court under Art.226 and contends that his
fundamental rights have been contravened by any executive action, the
High Court would naturally like to give relief to him; but even in such a
case, if the petitioner has been guilty of laches, and there are other relevant
circumstances which indicate that it would be in appropriate for the High
Court to exercise its high prerogative jurisdiction in favour of the petitioner,
ends of justice may require that the High Court should refuse to issue a
writ. There can be little doubt that if it is shown that a party moving the
High Court under Artl.226 for a writ is, in substance, claiming a relief which
under the law of limitation was barred at the time when the writ petition was
filed, the High Court would refuse to grant any relief in its writ jurisdiction.
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. That is a matter which
must be left to the discretion of the High Court and like all matters left to the
discretion of the Court, in this matter too discretion must be exercised
judiciously and reasonably.”
25. In RAMACHANDRA SHANKAR DEODHAR AND OTHERS v THE
[29]
STATE OF MAHARASHTRA there was a delay of more than ten or
twelve years in filing the petition since the accrual of the cause of complaint,
and it was contended that the said delay was sufficient to disentitle the
petitioners to any relief in a petition filed under Art.32 of the Constitution of
India. The Constitution Bench of the Supreme Court held:
“We do not think this contention should prevail with us. 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 discretion, and there is no
inviolable rule that whenever there is delay, the Court must necessarily
refuse to entertain the petition. Each case must depend on its own facts.
The question, as pointed out by Hidyaatullah, C.J. in Tilokchand Motichand
v. H.B. Munishi is one of discretion for this Court to follow from case to
case. There is no lower limit and there is no upper limit….It will all depend
on what the breach of the Fundamental Right and the remedy claimed are
and how the delay arose.”
26. In Bhailal Bhai’s case, the Constitution Bench held that no Rule can
be laid down for universal application for condoning the delay under Article
226 and the law of limitation has no application. However, it was observed
that 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. It was further observed 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 can be measured. The Court
may consider the delay unreasonable even if it is less than the period of
limitation prescribed for a civil action for the remedy but where the delay is
more than this period, it will almost always be proper for the court to hold it
as unreasonable. Of course, these observations were made in the context
of a claim made for recovery of illegally collected tax. But, from this it can be
said where there is unreasonable delay, the Court should normally decline
to condone the lapse.
27. I n Narayani Debi Khaitan’s case, speaking for the Constitution
Bench, Gajendragadkar, Chief Justice held that though the High Court in
exercise of the power under Article 226 in its discretion grant relief in cases
where the 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. It was also
held where it was established that when a relief under the law of limitation
was barred at the time writ petition was filed, the High Court would refuse to
grant any relief in its writ jurisdiction. The Constitution Bench, no doubt
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. It was held that it
is a matter which must be left to the discretion of the High Court and like all
matters left to the discretion of the Court; in such matter too discretion must
be exercised judiciously and reasonably.
28. In Tilokchand Motichand case, another Constitution Bench of the
Supreme Court held that a party aggrieved must explain satisfactorily all
semblance of delay. It was observed that though no period can be indicated
which may be regarded as the ultimate limit of action, each case will have to
be considered on its own facts. It was also held avoidable delay affecting
the merits of the claim will disentitle a party to invoke the extraordinary
jurisdiction. The question is one of discretion for the Court to follow from
case to case and it will all depend on what the breach of fundamental right
and the remedy claimed and how the delay arose.
29. The Constitution Bench of the Supreme Court in Ramachandra
Shankar Deodhar’s case also no doubt held that the rule which says that
the Court 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 discretion and there
is no inviolable rule that whenever there is delay, the Court must
necessarily refuse to entertain the petition and each case must depend
upon its own facts. There is no lower limit and there is no upper limit and it
will all depend on what the breach of the fundamental right or the remedy
claimed are and how the delay arose. However, the Constitution Bench
clearly held that each case must depend on its own facts and as held in
Tilokhcand’s case it will all depend on what the breach of the fundamental
right and the remedy claimed are and how the delay arose. The matter
relates to promotion to the post of Deputy Collector. The Supreme Court
interfered in the said case because on facts it was found that there were no
unified rules of recruitment to the posts of Deputy Collector and that
promotions that were being made by the State Government were only
provisional, to be regularized when unified rules of recruitment were made.
The view expressed in Tilokchand a n d Ramachandra Shankar
Deodhar’s case was approved by a Larger Bench of the Supreme Court in
Mafatlal Industries case.
30. The Supreme 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. Though the provisions of Limitation Act have no application to the
proceedings under Article 226 of the Constitution of India as held by the
Supreme Court a relief which under the law of limitation was barred at the
time when the writ petition was filed the High Court would be justified to
deny the relief. In our opinion, in cases where an order is not sustainable in
law and where the party has approached the court within a reasonable
period of time, then, it would be in the fairness of things that the delay is
condoned. But, it is not that in all other cases the Court should decline the
relief. As already held, it is always open to the Court to grant the relief
where the party has been able to explain the delay.
31. In CHUBAJAMIR AND OTHERS v. STATE OF NAGALAND AND
[30]
OTHERS the Supreme Court held that inordinate delay of seven or
eight years in approaching the High Court was a very valid and important
consideration. In Bhakra Beas Management Board v. Krishan Kumar Vij
[31]
and another a similar view was taken.
[32]
32. BHOOP SINGH v. UNION OF INDIA the petitioner who was
working as a police constable was terminated from service along with
others for participating in a mass agitation. Some of the terminated
employees approached the High Court of Delhi and the High Court directed
reinstatement which was upheld by the Supreme Court in Lt. Governor of
[33]
Delhi v. Dharampal . Thereafter in 1989 the petitioner approached the
Central Administrative Tribunal after a lapse of 22 years after his termination
seeking a similar relief granted to others. The Tribunal rejected the
application. The Supreme Court held:
Inordinate and unexplained delay or laches is by itself a ground to
refuse relief to the petitioner, irrespective of the merit of his claim. 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. Others are then justified in acting on that
belief. This is more so in service matters where vacancies are required to
be filled promptly. A person cannot be permitted to challenge the
termination of his service after a period of twenty-two years, without any
cogent explanation for the inordinate delay, merely because others
similarly dismissed had been reinstated as a result of their earlier petitions
being allowed. Accepting the petitioner’s contention would upset the entire
service jurisprudence and we are unable to construe Dharampal in the
manner suggested by the petitioner. Article 14 or the principle of non-
discrimination is an equitable principle and, therefore, any relief claimed on
that basis must itself be founded on equity and not be alien to that concept.
In our opinion, grant of the relief to the petitioner, in the present case, would
be inequitable instead of its refusal being discriminatory as asserted by
learned counsel for the petitioner. We are further of the view that these
circumstances also justify refusal of the relief claimed under Article 136 of
the Constitution.”
33. In JAGDISH LAL AND OTHERS v. STATE OF HARYANA AND
[34]
OTHERS it was held that delay disentitles the party to the discretionary
relief under Article 226 or Article 32 of the Constitution of India 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.
34. In BANDA DEVELOPMENT AUTHORITY, BANDA v. MOTILAL
[35]
AGARWAL AND OTHERS where the matter relates to challenge to the
acquisition of land for public purpose placing reliance on the decision in
Bhailal Bhai’s case (26 supra) the Apex Court held:
16. In our view, even if the objection of delay and laches had not been
raised in the affidavits filed on behalf of BDA and the State Government,
the High Court was duty-bound to take cognizance of the long time gap of
nine years between the issue of declaration under Section 6(1) and filing of
the writ petition, and declined relief to Respondent 1 on the ground that he
was guilty of laches because the acquired land had been utilised for
implementing the residential scheme and third-party rights had been
created. The unexplained delay of about six years between the passing of
award and filing of the writ petition was also sufficient for refusing to
entertain the prayer made in the writ petition.
17. It is true that no limitation has been prescribed for filing a petition
under Article 226 of the Constitution but one of the several rules of self-
imposed restraint evolved by the superior courts is that the High Court will
not entertain petitions filed after long lapse of time because that may
adversely affect the settled/crystallized rights of the parties. If the writ
petition is filed beyond the period of limitation prescribed for filing a civil suit
for similar cause, the High Court will treat the delay unreasonable and
decline to entertain the grievance of the petitioner on merits.
[36]
35. I n AJODHYA BHAGAT v. STATE OF BIHAR where a writ
petition had been filed after six years of finalization of the land acquisition
proceedings, the Apex Court declined to interfere in the matter.
[37]
36. In AMRIT LAL BERRY v COLLECTOR OF CENTRAL EXCISE
a writ petition was filed challenging the promotions after 12 years. The
Supreme Court held that where a person is so remiss and negligent in
approaching the Court with inordinate and unexplained delay he
jeopardizes his claim. It was held:
16. Even if we were to assume, as the petitioner would like us to do,
that a disregard of seniority determined solely by length of service was the
only reason for his failure to get the senior grade in 1961, there is yet
another hurdle before the petitioner, which was not shown to be present in
Ravi Varma case {)1972) 1 SCC 379}, and, therefore, not considered or
adjudicated upon in that case. There, no objection based on delay in
applying to the Court was taken presumably because it could not be taken.
But, a number of promotions having taken place between 1959 and the
filing of Amrit Lal Berry’s petition in 1971, those who were so promoted and
had been satisfactorily discharging, for considerable periods before the
filing of the petition, their duties in a higher grade would acquire new claims
and qualifications, by lapse of time and due discharge of their new
functions so that they could not, unless relief had been sought speedily
against their allegedly illegal confirmations and promotions, be equitably
equated with the petitioner. The inequality in the equitable balance brought
into being by a petitioner’s own laches and acquiescence cannot be
overlooked when considering a claim to enforce the fundamental right to
equal treatment. To treat unequals equally would also violate that right.
Although, it may not be possible for the State or its agents to plead an
estoppel against a claim to the fundamental right to equal treatment, yet, if
a petitioner has been so remiss or negligent as to approach the Court for
relief after an inordinate and unexplained delay, he certainly jeopardises his
claims as it may become inequitable, with circumstances altered by lapse
of time and other facts, to enforce a fundamental right to the detriment of
the similar claims of innocent third persons.
[38]
37. In P.S. SADASIVASWAMY v. STATE OF TAMILANDU the
Supreme Court held that where the persons allow things to happen and
then approach the court to put forward stale claims and try to unsettle settled
matters are not entitled for the relief. It was held:
“2. … It is not that there is any period of limitation for the courts to
exercise their powers under Article 226 nor is it that there can never be a
case where the courts cannot interfere in a matter after the passage of a
certain length of time. 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.” (emphasis supplied)
38. TRIDIP KUMAR DINGAL AND OTHERS V. STATE OF WEST
[39]
BENBGAL AND OTHERS relates to recruitment of Medical
Technologists in the State of West Bengal. The High Court of Calcutta
disposed of the writ petitions with certain directions on 11.8.2003. Some of
the candidates approached the Apex Court by way of a Special Leave
Petition which was withdrawn on 29.4.2004. Some of the candidates who
have not approached the Administrative Tribunal or the High Court have
approached the Supreme Court with a delay of 559 days. It was argued that
equals must be treated equally which is the fundamental right enshrined in
Articles 14 and 16 of the Constitution and that fundamental rights cannot be
waived. Therefore, it was argued that even if the appellants had not
approached the Court earlier, they can approach the Court claiming similar
relief by invoking Part III of the Constitution. Dealing with the contention, the
Supreme Court held:
“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, Moon Mills Ltd. v. Industrial Court (AIR
1967 1450) and 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. Munsh, Durga Prashad v. Chief Controller of
Imports & Exports { (1969) 1 SCC 185} and 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.”
The Supreme Court agreed with the observations made in P.S.
Sadasivaswamy’s case (38 supra)
Holding so, however, in respect of some the candidates who were
vigilant about their rights the Supreme Court granted relief.
39. I n SHANKARA COOP. HOUSING SOCIEITY LTD. v M.
[40]
PRABHAKAR referring to the decision of the Privy Council in
[41]
LINDSAY PETROEUM CO. v HURD the Supreme Court held:
“46. Delay and laches is one of the factors that require to be borne in
mind by the High Courts when they exercise their discretionary power
under Article 226 of the Constitution of India. 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 rights
taken in conjunction with the lapse of time and other circumstances.
47. The Privy Council in Lindsay Petroleum Co. v. Hurd, which was
approved by this Court in Moon Mills Ltd. v. Industrial Court and
Maharashtra SRTC v. Balwant Regular Motor Service ( AIR 1969 SC 329),
has stated:
(Lindsay Petroleum Co. case, 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 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 it relates to the remedy.”
48. In Amrit Lal Berry v. CCE (1975) 4 SCC 714, this Court took the
view that: (SCC p. 726, para 16)
“16. … if a petitioner has been so remiss or negligent as to approach
the Court for relief after an inordinate and unexplained delay, he certainly
jeopardises his claims as it may become inequitable, with circumstances
altered by lapse of time and other facts, to enforce a fundamental right to
the detriment of the similar claims of innocent third persons.”
[42]
49. In State of Maharashtra v. Digambar , this Court observed that:
(SCC p. 683d)
Unless the facts and circumstances of the case at hand clearly justify
the laches or undue delay, writ petitioners are not entitled to any relief
against anybody including the State.
[43]
50. In Shiv Dass v. Union of India , this Court opined that: (SCC p.
277, para 8)
“8. … 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.”
51. In City and Industrial Development Corpn. v. Dosu Aardeshir
[44]
Bhiwandiwala , this Court held: (SCC p. 174, para 26)
“26. It is well settled and needs no restatement at our hands that under
Article 226 of the Constitution, the jurisdiction of a High Court to issue
appropriate writs particularly a writ of mandamus is highly discretionary.
The relief cannot be claimed as of right. One of the grounds for refusing
relief is that the person approaching the High Court is guilty of unexplained
delay and the laches. Inordinate delay in moving the court for a writ is an
adequate ground for refusing a writ. The principle is that the courts
exercising public law jurisdiction do not encourage agitation of stale claims
and exhuming matters where the rights of third parties may have accrued
in the interregnum.”
52. Shri Ranjit Kumar, learned Senior Counsel for contesting
respondents, invites our attention to the observations made by this Court in
State of M.P. v. Nandlal Jaiswal { (1986) 4 SCC 566} wherein this Court
has stated: (SCC p. 595, para 24)
“24. … this rule of laches or delay is not a rigid rule which can be cast
in a straitjacket formula, for there may be cases where despite delay and
creation of third-party rights the High Court may still in the exercise of its
discretion interfere and grant relief to the petitioner. But, such cases where
the demand of justice is so compelling that the High Court would be
inclined to interfere in spite of delay or creation of third-party rights would by
their very nature be few and far between. Ultimately it would be a matter
within the discretion of the Court; ex hypothesi every discretion must be
exercised fairly and justly so as to promote justice and not to defeat it.”
53. Reliance is also placed on the observations made by this Court in
Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur {(1992) 2
SCC 598}, wherein it is observed: (SCC pp. 602-03, para 13)
“13. The rule which says that the Court may not enquire into belated
and stale claim is not a rule of law but a rule of practice based on sound
and proper exercise of discretion. Each case must depend upon its own
facts. It will all depend on what the breach of the fundamental right and the
remedy claimed are and how delay arose. The principle on which the relief
to the party on the grounds of laches or delay is denied 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 a reasonable
explanation for the delay. The real test to determine delay in such cases is
that the petitioner should come to the writ court before a parallel right is
created and that the lapse of time is not attributable to any laches or
negligence. The test is not as to physical running of time. Where the
circumstances justifying the conduct exist, the illegality which is manifest
cannot be sustained on the sole ground of laches.”
54. The relevant considerations, in determining whether delay or laches
should be put against a person who approaches the writ court under Article
226 of the Constitution is now well settled. They are:
(1) There is no inviolable rule of law that whenever there is a delay, the
Court must necessarily refuse to entertain the 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.
(2) 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.
(3) The satisfactory way of explaining delay in making an application
under Article 226 is for the petitioner to show that he had been seeking
relief elsewhere in a manner provided by law. If he runs after a remedy not
provided in the statute or the statutory rules, it is not desirable for the High
Court to condone the delay. It is immaterial what the petitioner chooses to
believe in regard to the remedy.
(4) No hard-and-fast rule, can be laid down in this regard. Every case
shall have to be decided on its own facts.
(5) That representations would not be adequate explanation to take
care of the delay.”
40. I n G.P. DOVAL AND OTHERS v. CHIEF SECRETARY,
GOVERNMENT OF U.P. the matter relates to seniority. It was contended
that in view of the long unexplained delay the Court should not grant the
relief. However, the Supreme Court interfered in the matter because the
authorities have not finalized the seniority list for period of more than 12
years and are operating the field for further promotion to the utter
disadvantage of the petitioners.
41. I n K. THIMMAPPA v. CHAIRMAN, CENTRAL BOARD OF
[45]
DIRECTORS, SBI the matter relates to placement of existing Officers in
the new grades and scale under the State Bank of India Officers
(Determination of Terms and Conditions of Service) Order, 1979. A
contention was raised that there was gross delay on the part of the
employees in filing the writ petition. However, it was argued on behalf of the
employees that if the treatment meted out to the petitioners is found to be
discriminatory and violates Article 14 of the Constitution, the Court will not
throw away the petitions merely on the ground of laches and in support of
the said contentions the decision of the Constitution Bench in
Ramachandra Shankar Deodhar’s case was relied upon. It was held that
where there is no infraction of Article 14 of the Constitution, question of
delay in filing the petition cannot be ignored.
I n DEHRI ROHTAS LIGHT RAILWAYS CO. LTD. V. DISTRICT
[46]
BOARD, SHAHABAD AND OTHERS it was held that each case must
depend upon its own facts and will all depend on what the breach of the
fundamental right and the remedy claimed are and how the delay arose.
The principle on which the relief to the party on the grounds of laches or
delay is denied 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.
42. In ANACHUNA NWAKOBI, THE OSHA OF OBOSI AND OTHERS
[47]
v. EUGENE NZEKWU AND ANOTEHR the Privy Council while
referring to the observations in LINDSAY PETROLEUM CO. V. HURD
(1874 LR 5 PC 221) it was held that laches is an equitable defence, and to
maintain it and obtain relief a defendant must have an equity which on
balance outweighs the plaintiff’s right. The matter relates to title to the land.
43. I n BASANTI PRASAD V. CHAIRMAN, BIHAR SCHOOL
[48]
EXAMINATION BOARD the Supreme Court followed the decision in
[49]
SHRI VALLABH GLASS WORKS LTD. v. UNION OF INDIA
wherein it was held:
“…While there are different periods of limitation prescribed for the
institution of different kinds of suits by the Limitation Act, 1963, there is no
such period prescribed by law in respect of petitions filed under Article 226
of the Constitution. Whether relief should be granted to a petitioner under
Article 226 of the Constitution where the cause of action had arisen in the
remote past is a matter of sound judicial discretion governed by the
doctrine of laches. Where a petitioner who could have availed of the
alternative remedy by way of suit approaches the High Court under Article
226 of the Constitution, it is appropriate ordinarily to construe any
unexplained delay in the filing of the writ petition after the expiry of the
period of limitation prescribed for filing a suit as unreasonable. This rule,
however, cannot be a rigid formula. There may be cases where even a
delay of a shorter period may be considered to be sufficient to refuse relief
in a petition under Article 226 of the Constitution. There may also be cases
where there may be circumstances which may persuade the court to grant
relief even though the petition may have been filed beyond the period of
limitation prescribed for a suit. Each case has to be judged on its own facts
and circumstances touching the conduct of the parties, the change in
situation, the prejudice which is likely to be caused to the opposite party or
to the general public etc….”
[50]
44. In STATE OF M.P. v. NANDLAL JAISWAL Chief Justice,
Bhagawati (as his Lordship then was) held:
“If there is inordinate delay on the part of the petitioner in filing a writ
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.
The evolution of this rule of laches or delay is premised upon a number of
factors. The High Court does not ordinarily permit a belated resort to the
extraordinary remedy under the writ jurisdiction because it is likely to cause
confusion and public inconvenience and bring in its train new injustices.
The rights of third parties may intervene and if the writ jurisdiction is
exercised on a writ petition filed after unreasonable delay, it may have the
effect of inflicting not only hardship and inconvenience but also injustice on
third parties. When the writ jurisdiction of the High Court is invoked,
unexplained delay coupled with the creation of third party rights in the
meanwhile is an important factor which always weighs with the High Court
in deciding whether or not to exercise such jurisdiction. We do not think it
necessary to burden this judgment with reference to various decisions of
this Court where it has been emphasised time and again that where there
is inordinate and unexplained delay and third party rights are created in the
intervening period, the High Court would decline to interfere, even if the
State action complained of is unconstitutional or illegal. We may only
mention in the passing two decisions of this Court one in Ramana
[51]
Dayaram Shetty v. International Airport Authority of India and the other
[52]
i n Ashok Kumar Mishra v. Collector . We may point out that in R.D.
Shetty case, even though the State action was held to be unconstitutional
as being violative of Article 14 of the Constitution, this Court refused to
grant relief to the petitioner on the ground that the writ petition had been filed
by the petitioner more than five months after the acceptance of the tender
of the fourth respondent and during that period, the fourth respondent had
incurred considerable expenditure, aggregating to about Rs 1.25 lakhs, in
making arrangements for putting up the restaurant and the snack bar. Of
course, this rule of laches or delay is not a rigid rule which can be cast in a
strait jacket formula, for there may be cases where despite delay and
creation of third party rights the High Court may still in the exercise of its
discretion interfere and grant relief to the petitioner. But, such cases where
the demand of justice is so compelling that the High Court would be
inclined to interfere in spite of delay or creation of third party rights would by
their very nature be few and far between. Ultimately it would be a matter
within the discretion of the court; ex hypothesi every discretion must be
exercised fairly and justly so as to promote justice and not to defeat it.”
[53]
45. In SALONAH TEA CO. LTD. v. SUPDT. OF TAXES following the
decision in Nandlal Jaiswal’s case, the Supreme Court held:
“26. In State of M.P. v. Nandlal Jaiswal this principle was reiterated by
Bhagwati, C.J. that it was well settled that the power of the High Court to
issue an appropriate writ under Article 226 of the Constitution was
discretionary and the High Court in the exercise of its discretion did not
ordinarily assist the tardy and the indolent or the acquiescent and the
lethargic. If there was inordinate delay on the part of the petitioner in
filing a writ petition and such delay was not satisfactorily explained, the
High Court might decline to intervene and grant relief in the exercise of its
writ jurisdiction. The evolution of this rule of laches or delay was premised
upon a number of factors. The High Court did not ordinarily permit a belated
resort to the extraordinary remedy under the writ jurisdiction because it
was likely to cause confusion and public inconvenience and bring in its
train new injustices. It was emphasised that this rule of laches or delay is
not a rigid rule which can be cast in a strait-jacket formula. There may be
cases where despite delay and creation of third party rights the High Court
may still in the exercise of its discretion interfere and grant relief to the
petitioner. But where the demand of justice is so compelling that the High
Court would be inclined to interfere in spite of delay or creation of third party
rights would by their very nature be few and far between. Ultimately it
would be a matter within the discretion of the Court: ex hypothesi every
discretion must be exercised fairly and justly so as to promote justice and
not to defeat it. We are in respectful agreement with this approach also.”
46. In a very recent case the Supreme Court after referring to the
Constitution Bench decisions in Tilokchand Motichand’s case
BANGALAORE CITY COOPERATIVE HOUSING SOCIEITY LIMITED v
[54]
STATE OF KARNATAKA held:
“45. We have considered the respective arguments. The Framers of
the Constitution have not prescribed any period of limitation for filing a
petition under Article 226 of the Constitution and it is only one of the several
rules of self-imposed restraint evolved by the superior courts that the
jurisdiction of the High Court under Article 226 of the Constitution, which is
essentially an equity jurisdiction, should not be exercised in favour of a
person who approaches the Court after a long lapse of time and no cogent
explanation is given for the delay.(emphasis supplied).
46. In Tilokchand Motichand v. H.B. Munshi the Constitution Bench
considered the question whether the writ petition filed under Article 32 of the
Constitution for refund of the amount forfeited by the Sales Tax Officer
under Section 21(4) of the Bombay Sales Tax Act, 1953, which, according
to the petitioner, was ultra vires the powers of the State Legislature should
be entertained ignoring the delay of almost nine years. Sikri and Hegde, JJ.
were of the view that even though the petitioner had approached the Court
with considerable delay, the writ petition filed by it should be allowed
because Section 12-A(4) of the Bombay Sales Tax Act, 1946 was declared
unconstitutional by the Division Bench of the High Court (sic Constitution
Bench of the Supreme Court). Bachawat and Mitter, JJ. opined that the writ
petition should be dismissed on the ground of delay.
47. Hidayatullah, C.J. who agreed with Bachawat and Mitter, JJ. in
Tilokchand case {(1969) 1 SCC 110 } noted that no period of limitation has
been prescribed for filing a petition under Article 32 of the Constitution and
proceeded to observe: (SCC p. 116, para 11)“11. Therefore, the question is one of discretion for this Court to follow
from case to case. There is no lower limit and there is no upper limit. A
case may be brought within the Limitation Act by reason of some article but
this Court need not necessarily give the total time to the litigant to move
this Court under Article 32. Similarly in a suitable case this Court may
entertain such a petition even after a lapse of time. It will all depend on what
the breach of the fundamental right and the remedy claimed are when and
how the delay arose.”
48. The ratio of the aforesaid decision is that even though there is no
period of limitation for filing petitions under Articles 32 and 226 of the
Constitution, the petitioner should approach the Court without loss of time
and if there is delay, then cogent explanation should be offered for the
same. However, no hard-and-fast rule can be laid down or a straitjacket
formula can be adopted for deciding whether or not this Court or the High
Court should entertain a belated petition filed under Article 32 or Article 226
of the Constitution and each case must be decided on its own facts”.
(emphasis supplied).”
47. In DIVISIONAL MANAGER, PLLANTATION DIVISION, ANDAMAN
[55]
& NICOBAR ISLANDS v. MUNNU BARRICK AND OTHERS it was
held that where serious questions of law were raised the High Court should
take a liberal view on the application for condonation of delay. In the present
case herein no question of law is involved to take a liberal view.
4 8 . In BHAGMAL v. M.P. COOPERATRIVE MARKETING &
[56]
CONSUMER FEDERAATION LTD. AND OTEHRS it was held 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 interfere with the order.
49. i n ROYAL ORCHID HOTELS LTD. AND
The Supreme Court
[57]
ANOTHER v. G. JAYARAMIREDDY AND OTHERS reiterated the law
in the following terms:
“25. Although the Framers of the Constitution have not prescribed any
period of limitation for filing a petition under Article 226 of the Constitution of
India and the power conferred upon the High Court to issue to any person
or authority including any Government, directions, orders or writs including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari is not hedged with any condition or constraint, in the last 61
years the superior courts have evolved several rules of self-imposed
restraint including the one that the High Court may not enquire into belated
or stale claim and deny relief to the petitioner if he is found guilty of laches.
The principle underlying this rule is that the one who is not vigilant and does
not seek intervention of the Court within 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 of the Constitution.
Another reason for the High Court’s refusal to entertain belated claim is that
during the intervening period rights of third parties may have crystallised
and it will be inequitable to disturb those rights at the instance of a person
who has approached the Court after long lapse of time and there is no
cogent explanation for the delay. We may hasten to add that no hard-and-
fast rule can be laid down and no straightjacket formula can be evolved for
deciding the question of delay/laches and each case has to be decided on
its own facts.”
50. It may also be noted that the benefit of a judgment cannot be
extended automatically. I n A.P. STEEL RE-ROLLING MILL LTD. v.
[58]
STATE OF KERALA AND OTHERS the appellant filed a petition
before the Kerala High court for confessional tariff pursuant to the orders
passed by the Apex Court in HIGHTECH ELECTROTHERMICS &
HYDROPOWER LTD. V. STATE OF KERALA ( (2003) 2 SCC 716). The
High Court of Kerala declined to extend the relief granted in the said case.
The Supreme Court held:
“31.The benefit of a judgment is not extended to a case automatically. While
granting relief in a writ petition, the High Court is entitled to consider the fact
situation obtaining in each case including the conduct of the petitioner. In doing
so, the Court is entitled to take into consideration the fact as to whether the
writ petitioner had chosen to sit over the matter and then wake up after the
decision of this Court. If it is found that the appellant approached the Court
after a long delay, the same may disentitle him to obtain a discretionary relief.
[59]
(See Chairman, U.P. Jal Nigam v. Jaswant Singh .)”
51. From the decisions of the Supreme Court, it is seen that no limitation
is prescribed for filing a petition under Article 226 of the Constitution and
there is no rule of universal application for condoning the delay. Though
there is no period of limitation prescribed for filing a petition under Article
226, a person aggrieved should approach the court without loss of time and
if there is delay, then cogent explanation should be offered for the same.
The line of decisions of the Supreme Court on the issue would be indicative
that the Courts have evolved self imposed restraints in enquiring into
belated or stale claims. Though it is open to the High Court to exercise its
own discretion to grant any relief in stale or belated claims, before going to
exercise such discretion, the Court has to enquire whether the party is guilty
of laches for a reasonable period of delay in approaching the Court. The
exercise of such discretion would depend upon different circumstances and
facts and may be different from case to case. In a case delay of six months
or so may be treated as inordinate and fatal in the facts and circumstances
of the case and the Court may decline to condone the delay but in another
case delay of five years or so though may be treated as inordinate but not
fatal in the fact situation the Court may condone the delay as an exception
to meet the ends of justice. Therefore, it all depends upon facts of each
case.
52. On the basis of the decisions of the Supreme Court referred to above,
the relevant considerations that may be taken into account in determining
the issue of delay and laches may be summarized thus:
(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.
(2) Courts have evolved rules of self-imposed restraints or fetters
where the High court may not 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.
(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.
(4) There is no inviolable rule of law that whenever there is a delay, the
Court must necessarily refuse to entertain the 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.
(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.
(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.
(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.
(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.
(9) Though the High Court in exercise of the power under Article 226 in
its discretion grant relief in cases where the 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.
(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.
(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.
(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.
(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.
(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.
53. An analysis of the case law discussed above would amply make it
clear that issue of a writ of a mandamus or certiorari is largely a matter of
sound discretion and will not be granted if there is negligence or omission
on the part of the person to assert his right as, taken in conjunction with the
lapse of time and other circumstances, causes prejudice to the adverse
party. Therefore, burden lies on the workman who has to establish that in
spite of his best efforts and diligence he was prevented from approaching
the authority within the period of limitation provided for or the Writ Court
within a reasonable period of time. If the workman is not able to
satisfactorily explain with cogent reasons for the delay he is not entitled to
seek for condonation of the delay. It is true that the punishment imposed
cannot be sustained in law because of the illegality crept in it in not
conducting a prior enquiry. But, still the workman is under a statutory
obligation to challenge the same within the time provided by the statutory
rules or regulations or within a reasonable period of time before the Writ
Court. If delay of 5 to 18 years is condoned, for no reason or fault on the part
of the authority, the proceedings which had attained finality are to be set
aside. Setting aside of such order at a belated stage and allowing of a stale
claim, may, as rightly held by the Division Bench in Esa Ali’s case, inspire
the workman to seek for consequential benefits of promotion as well, in
which event, the rights of the third parties would adversely be affected for no
fault of theirs. A workman who is tardy and not diligent for years in availing
a statutory remedy or in approaching the Court of law, in our view, cannot
be encouraged or permitted to contend that in view of the decision of the
Supreme Court the punishment cannot be sustained in law, therefore, delay
to any extent is to be condoned automatically in exercise of the power
conferred on the appellate or revisional authorities or by the writ courts in
exercise of the discretionary powers under Article 226 of the Constitution of
India. Courts can come to the aid of a person who is diligent and vigilant
but unable to approach the authority or court of law for redressal of his
grievance in spite of his best efforts and reasons beyond his control but not
to a person who is tardy and negligent or slept over the matter in availing
the statutory or legal remedies.
54. No doubt in the present cases the punishment awarded cannot be
sustained in law in view of the law laid down by the Supreme Court in
Kulwant Singh Gill’s case and in the light of the Regulations, but, a specific
period having been prescribed in the Regulations of the Corporation, as
stated earlier, the same need to be adhered to. The proviso under
Regulation 23 empowers the appellate authority to entertain an appeal even
after expiry of the period of limitation provided if it is satisfied that the
appellant had sufficient cause for not submitting the appeal in time. A
similar power may also be exercised under Regulation 29. If the authority
is not satisfied with the explanation offered by the workman in challenging
the orders of punishment, this Court, in exercise of the jurisdiction under
Article 226, cannot interfere unless the conclusion arrived at by the authority
that the explanation offered by the workman is not justified or germane or no
prudent person would have come to such a conclusion. In appropriate
cases where the appeal or revision is filed within a reasonable period of
delay, it is always open to the appellate or revisional authority to condone
the delay on valid explanation putforth by the workman in not approaching
the authorities within the time specified, in which event, the Writ Court
should not interfere with the order. In our opinion, when Regulations
provided a period of two months for filing an appeal and six months for a
revision, delay of 5 to 18 years in approaching the authority would certainly
be fatal to the case of a workman unless properly explained with cogent
reasons.
55. It is true that in some cases where the delay is five years or so the
Supreme Court inclined to condone the delay but under different
circumstances. When the fundamental rights are violated or where the delay
is not directly attributable to the party seeking the relief or where the rights of
the third parties are not intervened or in matters where seniority of
employees is not finalized, the Court, would be justified to grant the relief;
but not as a general rule of practice.
56. Therefore, in our considered opinion, Kulwant Singh Gilll’s case
does not confer or clothe an automatic right with the employee to challenge
the order of the authority at any time or whenever he wishes. The
principles laid down by the Apex Court governing the condonation of delay
will certainly and equally have application even in cases where challenge is
made to an order imposing the punishment contrary to the Regulations or
the ratio in Kulwant Singh Gill’s case, where the employee had slept over
the matter and had not chosen to challenge it within a reasonable period of
time. It may also be noticed that in service matters, the Courts have applied
the rule of delay with greater rigor.
We, therefore, agree with the view taken by the Division Bench in ED.
Esa Ali’s Case.
We answer the reference accordingly.
57. As already noted, in some cases, it was urged that no orders are
passed on the appeals or revisions filed by the petitioners. In the light of the
conclusions drawn above, the Writ Appeal and the respective Writ Petitions
are to be disposed of by the appropriate Benches. Registry may place the
matters before the appropriate Benches for disposal in accordance with law
and in the light of the principles laid down in this judgment.
PINAKI CHANDRA GHOSE, CJ
VILAS V. AFZULPURKAR, J
NOUSHAD ALI, J
15.02.2013
LR Copy to be marked: Yes.
vtv
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