Bombay High Court
DIPAKKUMAR GIRDHARLAL DOSHIversusTHIRD AND FINAL AUTHORITY APPOINTED UNDER THE NATIONAL TEXTILE CORPORATION LIMITED AND 5 ORS.
- Decided
- Disposal
- DISPOSED OFF
Holding
The Court held that the petitions were barred by inordinate delay and laches and that, having accepted NTC’s service terms, the petitioner’s retirement at age 58 was lawful, leading to dismissal of all reliefs.
Summary
The petitioner, a former Deputy Manager (Legal) of National Textile Corporation (NTC), filed five writ petitions under Article 226 seeking reinstatement, salary, provident‑fund contributions and other retiral benefits, contending that his retirement at age 58 was illegal because he should have retired at age 60 under the Bombay Industrial Relations Act. The Court examined the petitioner’s transfer to NTC under the Sick Textile Undertakings (Nationalisation) Act, 1974 and the subsequent acceptance of NTC’s service rules, including a change of pay scale. It held that the petitioner had accepted the NTC terms, making the claim of a higher retirement age untenable. The Court further found that all petitions were filed after a long in‑ordinate delay, raising disputed factual issues better suited to civil suits, and therefore were barred by the doctrines of delay and laches. Consequently, the petitions were dismissed. The Court also directed the petitioner to approach NTC for any pension matters.
Issues considered
- Whether the petitioner’s retirement at age 58 under NTC’s service rules is valid versus his claim of entitlement to retirement at age 60 under the Bombay Industrial Relations Act.
- Whether the writ petitions seeking reinstatement, salary arrears, provident‑fund contributions and other benefits are maintainable given the delay and laches.
- Whether the matters raised involve disputed questions of fact unsuitable for writ jurisdiction and require a civil suit.
- Whether the retirement notice and related orders are illegal or unconstitutional.
- Whether the petitioner is liable to refund the gratuity amount received.
- Whether the existence of NTC (Western Region) and its recruitment and promotion rules is valid.
Legislation cited
Subjects
- retirement
- superannuation
- delay
- laches
- writ jurisdiction
- Article 226
- provident fund
- salary arrears
- National Textile Corporation
- Bombay Industrial Relations Act
- service conditions
Judgment
901-WP-2456-14 & ORS (2).DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
JYOTI
RAJESH ORDINARY ORIGINAL CIVIL JURISDICTION
MANE
WRIT PETITION NO.2456 OF 2014
Digitally signed by
JYOTI RAJESH
MANE
Date: 2026.02.25
19:56:20 +0530 WITH
IPA NO.60 OF 2016
Dipakkumar Girdharlal Doshi ...Petitioner
Versus
National Textile Corp. Limited
And Anr. ...Respondents
WITH
WRIT PETITION NO.2756 OF 2014
Dipakkumar Girdharlal Doshi ...Petitioner
Versus
National Textile Corp. Limited
And Anr. ...Respondents
WITH
WRIT PETITION NO.2757 OF 2014
Dipakkumar Girdharlal Doshi ...Petitioner
Versus
National Textile Corp. Limited
And Anr. ...Respondents
WITH
WRIT PETITION NO.2758 OF 2014
Dipakkumar Girdharlal Doshi ...Petitioner
Versus
National Textile Corp. Limited
And Anr. ...Respondents
WITH
WRIT PETITION NO.3056 OF 2014
Dipakkumar Girdharlal Doshi ...Petitioner
Versus
National Textile Corp. Limited
And Anr. ...Respondents
_______
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Mr. Tejas Dande a/w. Mr.Bharat Gadhavi a/w. Ms. Trushna Shah, Mr. Parth Talekar
a/w. Mr. Sarvesh Deshpande a/w. Ms. Mansi Dande a/w. Ms. Tanishka Chavan a/w.
Mr. Satyajeet Salve and Mr. Aniket Shitole, for Petitioner in all WPs.
Mr. Dipakkumar Girdharlal Dhoshi, Petitioner in person present.
Ms. Meena H. Doshi, for Respondents in all Wps.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 17th February 2026
P.C.
1. These are five Petitions filed by the Petitioner seeking separate reliefs
pertaining to his retirement age, provident fund, and other retiral dues. The
Petitions have been filed under Article 226 of the Constitution of India. Since all
the reliefs are sought by the same Petitioner against the Respondent – National
Textile Corporation Limited (NTC) we deem it appropriate, for the sake of
convenience, to dispose of the aforesaid Petitions by this common order.
2. The reliefs/prayers sought in each of the Petitions are reproduced
hereinbelow:
WP 2456 of 2014
A) That this Hon'ble Court be pleased to issue a Writ of Certiorari or a Writ
in the nature of Certiorari or any other appropriate Writ, order or direction
calling for records and proceedings from the Respondents regarding
petitioner's retirement case and after going through the legality, validity and /
or propriety thereof the same may be held to be illegal and / or bad in law
and / or unconstitutional and quash and set aside the notice of retirement
dated 02.12.2013 as well as letter dated 29.05.2014 thereby superannuating /
retiring Petitioner as
(i) it is issued on letter head of non existing company viz. National Textile
Corporation Limited (Western Region) ( a Government of India
Undertaking), and
(ii) it is issued on the basis of non existence of rule viz. NTC Ltd. (WR)
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Employees Recruitment and Promotion Rule and are exhibited as Exhibit-
“I-1”/ Exhibit- “I-2” and Exhibit- “O-1”/ Exhibit- “O-2”
B) That this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ
in the nature of Mandamus or any other appropriate Writ, order or direction
directing the Respondent No. 1 and Respondent No. 2 to treat the Petitioner
on duty, on and from 01.06.2014 onwards till reinstatement with full salary
and applicable allowances and other benefits related to post and accordingly
Petitioner be paid salary and other monetary and other benefits from
01.06.2014 onwards till he completes the age of superannuation under 'BIR
Act' notwithstanding retirement memo dated 02.12.2013 as well as relieving
letter dated 29.05.2014 which are issued under non existence of company
and non existence of rule and which are exhibited as Exhibit- “I-1”/ Exhibit-
“I-2” and Exhibit- “O-1”/ Exhibit- “O-2”
C) That pending the hearing and final disposal of the Petition, the Petitioner
prays that the effect and implementation of notice of retirement dated
02.12.2013 as well as relieving letter dated 29.05.2014 which are issued
under non existence of company and non existence of rule and are exhibited
as Exhibit- “I-1”/ Exhibit- “I-2” and Exhibit- “O-1”/ Exhibit- “O-2” be
stayed and the Respondent be directed to reinstate the Petitioner with
continuity of service and with full salary and other related allowances etc. and
allow petitioner to report for duty immediately and also to pay salary as usual
in accordance with law on due date to Petitioner from 01.06.2014 onwards
with 24 % compounded interest to be calculated from month wise payable
due date.
D) Hon'ble Court may please decide whether Petitioner is required to
refund / return Rs.10,00,000/- which is being received by Petitioner towards
Gratuity
E) Honble Court direct Respondent No. 2 to produce original documents
related to (i)Existence of National Textile Corporation Limited (Western
Redion) ( a Government of India Undertaking)' and (ii) existence/
authenticity of NTC Ltd. (WR) Employees Recruitment and Promotion
Rules'
F) Ad-interim/interim reliefs in terms of prayer clause "C", "D' & "E"
hereinabove.
G) The delay, if any, in filing this petition may please be condoned, H) Cost
of litigation and compensation asapplicable under prevailing law etc.
I) Such other and further reliefs as deemed fitand proper by this Hon'ble
Court on the facts and circumstances of the case;
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WP 2756 of 2014
A)That this Hon'ble Court may please issue a Writ of Certiorari or a Writ in
the nature of Certiorari or any other appropriate Writ, order or direction
calling for original records and proceedings from the Respondents regarding
payment made to Petitioner (i) for May 1990 by Dye Works and for June
1990 by the then NTC (MN) Ltd. And recovery of Provident Fund
Contribution from salary for said months and after going through the legality,
validity and / or priority under prevailing law, PF Act, please decide that the
last salary drawn at Dye Works for May 1990 is protected or reduced and PF
contribution is protected or reduced in salary for June 1990 and document
dated 06.06.2013 is legally valid document or fake document and action of
Respondents are legal and / or permissible under prevailing applicable law, PF
Act and if not permissible then appropriate proceedings against the
Respondents including Respondent No. 2 under prevailing applicable law
may please be initiated,
B)That this Hon'ble Court may please issue a Writ of Mandamus or a Writ in
the nature of Mandamus or any other appropriate Writ, order or direction
directing the 2nd Respondent to submit report considering (i) records of
NTC about salary and PF contribution for the month of May and June 1990
and (ii) records of Respondent No. 2 considering representation of employees
and Petitioner including notice dated 11.01.2013 of Petitioner in the matter
within time to be granted by this Hon'ble Court for deciding this Petition and
also copy of report be given to Petitioner,
C)That pending the hearing and final disposal of the Petition, the Petitioner
prays that Respondent No. 5 and Respondent No. 6 be ordered to deposit
arrears of salary considering (i) protection of section 12 of PF Act considering
salary for May 1990 and paid by Dye Works, (ii) effecting promotion from
01.04.1990 considering last salary drawn at Dye Works for May 1990 (iii)
effecting agreement dated 03.05.1990 entered between India United Mills
Dye Works with Rashtriya Mill Mazdoor Sangh and subsequent further
promotion till retirement with 24% compounded interest to be calculated on
date due and payable from respective month till actual payment and
Provident Fund contribution considering salary due and payable from
01.04.1990 till retirement at appropriate rates under PF Act be deposited in
PF Account of Petitioner,
D)That calls for original records of Respondent No.2, Respondent No. 5 and
Respondent No. 6 andrelated to the present Petition for deciding the same on
facts and merits of the case
E)That calls for original records of Respondent No.6 to authenticate the
contents of document dated06.06.2013 that salary for April 1990 is drawn
and paid by the then NTC (MN) Ltd. at basic payof Rs. 1640/-.
F)Ad-interim / interim reliefs in terms of prayerclause "B", "C", "D" and "E",
hereinabove.
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G)The delay, if any, in filing this petition may please be condoned
H)cost of the Petition.
I)Such other and further reliefs as deemed fit and proper by this Hon'ble
Court on the facts and circumstances of the case.
WP 2757 of 2014
A)That this Hon'ble Court be pleased to issue a Writ of Certiorari or a Writ
in the nature of Certiorari or any other appropriate Writ, order or direction
calling for records from the Respondents regarding payment of arrears of
salary on account of merger of 50 % dearness allowance as dearness pay and
recovery of Provident Fund Contribution from payment of arrears of salary
for (i) regular employee including Petitioner and (ii) ex-employee
considering statement dated 20.12.2011 and after going through the legality,
validity and / or priority under prevailing law, PF Act thereof, the recovery of
PF from (i) arrears and (ii) salary from 01.04.2004 be considered to be illegal
and / or unlawful and or bad in law in respect of regular employee including
Petitioner and to initiate appropriate proceedings under prevailing law, PF
Act against the Respondents including Respondent No. 2 for different rate of
recovery of PF Contribution in respect of regular employee including
Petitioner as compared to ex- employee w.e.f. 01.04.2004,
B)That this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ
in the nature of Mandamus or any other appropriate Writ, order or direction
directing the Respondent No. 2 to deposit additional 2% employees
provident fund contribution + 2% voluntary provident fund contribution
considering Petitioner request and 2% matching contribution being
employers share, for the period 01.04.2004 to 31.03.2011 with further
compounded interest @ 24% on said contribution till date due and payable
and to deposit the entire amount in account of Petitioner which is maintained
by Respondent No. 2 under information to this Hon'ble Court and to
Petitioner.
C)That pending the hearing and final disposal of the Petition, the Petitioner
prays that Respondent No. 2 be ordered to investigate in the matter and to
submit its report within period considered by this Hon'ble Court, about less
recovery of provident fund contribution @ 2% for the period 01.04.2004 to
31.03.2011 and to initiate appropriate proceeding if it is an offence under
prevailing law, PF Act, on part of Respondents including PF commissioner of
Respondent No. 2,
D) That to call for original records Respondent No. 2, Respondent No. 5 and
Respondent No. 6 related to the present Petition for deciding the same on
facts and merits of the case,
E)Ad-interim/interim reliefs in terms of prayer clause "B", "C" and "D",
hereinabove,
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F) The delay, if any, in filing this petition may please be condoned,
G) cost of the Petition, and
H) Such other and further reliefs as deemed fit and proper by this Hon'ble
Court on the facts and circumstances of the case.
WP 2758 of 2014
A)That this Hon'ble Court be pleased to issue a Writ of Certiorari or a Writ
in the nature of Certiorari or any other appropriate Writ, order or direction
calling for records and proceedings from the Respondents regarding payment
of first installment of arrears of salary from 01.01.2007 and non recovery of
Provident Fund Contribution from payment of arrears of salary and after
going through the legality, validity and / or priority under prevailing law, PF
Act, the action to be considered as illegal and / or bad in law and to initiate
appropriate proceedings against the Respondents including Respondent No.
2
B)That this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ
in the nature of Mandamus or anyother appropriate Writ, order or direction
directing theRespondent No. 2 to deposit total PF contributionamounting to
Rs. 39,600/- as on 15th October 2011 with further interest @ 24 % on said
amount till date ofpayment and to deposit the entire amount in account of
Petitioner which is maintained by Respondent No. 2under intimation to this
Hon'ble Court and Petitioner,
C)That pending the hearing and final disposal of the Petition, the Petitioner
prays that Respondent No. 2 be order to investigate in the matter and to
submit its reportwithin time granted by this Court, about non recovery of
provident fund contribution from first installment ofarrears of Rs. 1,10,000/-
paid on 28.09.2011 and whether it is offence under prevailing law, PF Act on
part of Respondents and action / steps taken by Respondent No. 2 till date,
D)That call for original records of Respondent No. 2, Respondent No. 5 and
Respondent No. 6 which relates to the present Petition for deciding the same
on facts and merits of the case
E)Ad-interim/interim relief's in terms of prayer clause"B", "C" and "D",
hereinabove.
F)The delay, if any, in filing this petition may please becondoned
G)cost of the Petition.
H)Such other and further relief as deemed fit and proper by this Hon'ble
Court on the facts and merits of the case.
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WP 3056 of 2014
A) That this Hon’ble Court be pleased to issue a Writ of Certiorari or a
Writ in the nature of Certiorari or any other writ, order, direction taking in to
consideration the facts and merits of the present petition by calling for the
records from the Respondents and after going through the legality, validity
and / or propriety thereof may be decided and quashed and set aside the
office orders dated (i) 04.10.2005, (ii) 12.07.2006, (iii) 26.09.2008 and (iv)
letter dated 30.06.2010 which are issued under IDA scales of pay and
exhibited as Exhibit "K", Exhibit "O", Exhibit "Q-1" and Exhibit "Q-2"
respectively and by awarding consequential relief with payment of arrears of
salary considering revised Sixth Pay CDA scales of pay, grade pay, bunching
of increments etc. with all consequential benefits along with due promotion,
increments, pay revision, arrears etc. with effect from 01.01.2006 onwards
till date of retirement @ 24% compounded interest, to be calculated from
date due for payment till actual date of payment to the Petitioner in terms of
DPE - OM dated 12.06.1990, OM dated 14.10.2008 (Exhibit "R") and
other such OM, decision, directives, guidelines, clarifications etc. issued by
DPE from time to time for compliance of Judgment and Order dated
03.05.1990 passed by Hon'ble Supreme Court of India.
B) That pending hearing and final disposal of the Petition, the Petitioner
prays that the effect and implementation of office orders dated (i)
04.10.2005, (ii) 12.07.2006, (ili) 26.09.2008 and (iv) letter dated
30.06.2010 which are issued under IDA scales of pay and exhibited as
Exhibit "K", Exhibit "O", Exhibit "Q-1" and Exhibit "Q-2" respectively be
amended and the Respondent No. 5 and Respondent No. 6 be directed to
deposit with this Hon'ble Court (i) the payment of arrears of salary at revised
sixth pay commission CDA scale of pay, grade pay, bunching of increments
etc. with all consequential benefits along with due promotion, increments,
pay revision, etc. to the Petitioner with effect from 01.01.2006 onwards till
date of retirement considering Sixth Pay Commission CDA scales of pay with
24% compounded interest to be calculated from date due and payable till
actual date of payment, (ii) liberty be granted to the Petitioner to withdraw
the amount deposited by Respondent No. 5 and Respondent No. 6 as prayed
at (i) above(iii) to further deposit amount every month as per sixth pay
commission DA scale of pay till retirement considering Writ Petition
(Lodging) No. 2679 of 2014 / Writ Petition No. 2456 of 2014 filed in this
Hon'ble Court and (iv) liberty be granted to the Petitioner to withdraw the
amount deposited by Respondent No. 5 and Respondent No. 6 after illegal,
unlawful retirement of Petitioner i. e 31.052014 and further amount
deposited regularly every month considering Writ Petition (Lodging) No.
2679 of 2014/ Writ Petition No. 2456 of 2014 filed in this Hon'ble Court.
C) The Respondents No. 5 and Respondent No. 6 who have not only
violated DPE - OM dated 12.06.1990 (Exhibit "B"), OM dated 14.10.2008
(Exhibit "R"), OM dated 10.08.2009 (Exhibit "G") and other such OMs,
decision, directives, guidelines, clarifications etc. issued by DPE from time to
time for compliance of Judgment and Order dated 03.05.1990 (Exhibit "C")
passed by Hon'ble Supreme Court of India. but also mis-interpreted OM
dated 12.06.1990 (Exhibit "B"), OM dated 14.10.2008 (Exhibit "R"), OM
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dated 10.08.2009 (Exhibit "G") and other such OM, decision, directives,
guidelines, clarifications etc. issued by DPE from time to time for compliance
of Judgment and Order dated 03.05.1990 (Exhibit "C") as per their wish,
whims and thereby played with the lives of employees and particularly with
the life of Petitioner since Board of Directors and all executives. officials of
Respondents are not required to pay any penny towards cost of litigation etc.
from their own pocket nor they are looser on any count but the Petitioner has
to pay from his own pocket though ho is not at fault and petitioner is
deprived from earning his lawful revised salary w.e.f. 01.01.2006 onwards,
therefore all Respondents be punished under prevailing applicable law by
initiating appropriate proceedings,
D) Compensation under prevailing law for victimization, discrimination,
harassment, singled out and depriving the Petitioner by willfully not paying
lawful revised salary w.e.f. 01.01.2006 onwards under Sixth Pay CDA scales
of pay and all other related consequential applicable benefits there under
including grade pay, bunching of increments etc. and thereby financial
hardships faced by Petitioner
E) (i) Willfully non payment of lawful revised salary to Petitioner alone
w.e.f. 01.01.2006 onwards till retirement, (ii) compelled Petitioner to accept
'unconditionally' illegal office order dated 26.09.2008 (Exhibit "Q-1") and
letter dated 30.06.2010 (Exhibit "Q-2"), (iii) compelled Petitioner to earn
regularly salary under pre-revised IDA scales of pay instead of revised CDA
scales of pay w.e.f. 01.01.2006 onwards and (iv) violation of Fundamental
Rule - 27 reducing two increments of pay and allowances thereon for lite
time till retirement and (v) violation of PF Act by reducing contribution on
(a) said two increments and (b) applicable allowances on two increments, is
an offence on part of all the Respondents from the point of view of Petitioner
under prevailing applicable Law, PF Act etc. and therefore, all Respondents
be punished in accordance with and under provisions of prevailing applicable
law by initiating appropriate proceeding,
F) Since petition relates to salary and applicable allowances thereon which
are intentionally and willfully not paid to Petitioner though entitled
requested and demanded time and again by all possible way and also bread
and butter for surviving, therefore hearing be expedited and petition be
decided at the admission stage only,
G) Respondent No. 5 and Respondent No. 6 be directed to produce
following original records relates to present petition about
(i) Option in writing submitted by Petitioner from switching over from CDA
scales of pay to IDA scales of pay in terms of liberty granted under DPE OM
dated 12.06.1990 (Exhibit "B")
(ii) Through proper channel Original representation dated 28.01.2013
submitted by Petitioner and documents confirming action taken by
Respondent No. 6 on original representation dated 28.01.2013
(iii) Respondent No. 5 to provide copy of so called policy guidelines referred
in Respondent No. 6 letter dated 11.09.2012,
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(iv) Rule, policy under which letter dated 26.11.2015 was issued by
Respondent No. 6 communicating thereby decision "......... we wish to
continue with your dispute. "
(iv) Arrears calculation sheets duly audited by qualified chartered accountant
and related documents, office order about pay fixation in revised 6 pay CDA
and 2nd IDA pay scales, approval thereof by Respondent No. 5 about (a)
50% arrears of salary paid in September 2011, (b) balance 50% arrears of
salary paid and (c) thereafter one increment/ increments approval of
Respondent No. 5, office order issued by Respondent No. 6, calculation
sheets of 29 employees including Petitioner duly audited alongwith related
documents in respect of 29 employees including Petitioner.
H) Ad-interim reliefs in terms of prayer clause "B", "C", "D", hereinabove.
I) Such other and further reliefs as deemed fit and proper by this Hon'ble
Court on the facts, merits and circumstances of the case;
J) The delay, if any, in filing this petition be condoned as submitted and
prayed herein above.
And
I) Award cost of petition.
3. Briefly stated, the relevant facts necessary for the disposal of the
aforesaid Petitions are as follows:
(i) The Petitioner was working as Deputy Manager (Legal) with NTC and
superannuated/retired with effect from 31st May 2014, after office hours, upon
attaining the age of 58 years, vide letter dated 29th May 2014.
(ii) Respondent No. 1 is the NTC, which is wholly owned by the Government of
India (a Government undertaking) and registered under the Companies Act, 1956,
on or before 21st December 1974. The Parliament enacted the Sick Textile
Undertakings (Nationalisation) Act, 1974 (hereinafter referred to as the “1974
Act”), whereby approximately 103 sick textile undertakings were nationalised, and
the right, title, and interest of the former owners absolutely vested in the Union of
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India (UOI). The UOI subsequently transferred these sick textile undertakings to
NTC. Further, NTC, along with its two subsidiaries situated in Mumbai, is
governed by various labour legislations, including the Bombay Industrial Relations
Act, 1946 (hereinafter referred to as the “BIR Act”).
(iii) Section 14 of the 1974 Act governs the employment of the Petitioner, and
accordingly, the Petitioner continued to serve NTC under the provisions of the
1974 Act. The Petitioner held different positions, including Senior Clerk and Chief
Clerk, until he was transferred to the Head Office of NTC at Ballard Estate vide
transfer order dated 3rd August 1989.
4. The Petitioner joined the services of India United Mills Ltd. No. 6-Dye
Works as a Temporary Clerk on 6 th December 1974, and his designation was
subsequently confirmed as Junior Clerk under the BIR Act. It is the Petitioner’s
contention that as per Clause 11A of the Standing Orders for Clerks, the age of
superannuation was fixed at 60 years, and if the employee was found to be
efficient, the same could be extended up to 63 years.
5. The Petitioner contends that prior to his transfer to the Head Office, an
internal note dated 31st January 1989 was circulated by the Secretary at NTC
concerning the “age of superannuation for staff covered by the BIR Act at the time
of their appointment.” The Petitioner further contends that this internal note,
being a policy decision, established that employees appointed under the BIR Act
were to retire at the age of 60 years. Consequently, the Petitioner contends that his
age of retirement should have been fixed at 60 years.
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6. The Petitioner further contends that after his transfer to the Ballard
Estate office of NTC, his salary was fixed in accordance with the Central Dearness
Allowance (CDA) scales.
7. On 3rd August 1989, the Petitioner was transferred from India United Mills
Limited No. 6 Dye Works to the then Head Office of NTC at Ballard Estate,
Mumbai. On 24th May 1990, the Petitioner was designated as Assistant Clerk, and
the pay scale applicable to NTC employees was applied to him.
8. Thereafter, the Petitioner made several representations and submitted letters
to NTC, requesting to be reverted to his original post governed under the BIR Act.
Notwithstanding these representations, the Petitioner over the time continued to
receive promotions over time and was ultimately serving as Assistant Legal Officer
of NTC at the relevant time.
9. The General Manager (HR) of NTC Mr. E.N. Modak had addressed a
letter dated 27th February 2013 to Shri. R.K. Sinha, Director (HR) of NTC,
wherein it was recorded that the Petitioner had accepted the terms of his
employment under NTC. Relevant paragraphs of the letter dated 27 th February
2013 are reproduced below:-
"Shri R.K. Sinha,
Director (HR)
NTC Ltd,
New Delhi.
Sub:: Payment of eligible annual increment due from 01-01-2011
Dear Sir,
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We are in receipt of IOM No.CMD/3(06)/04 dated 15-02-2013
enclosing there with the copy of MOT letter No 17/1/2013-NTC
dated 13-02-2013 along with the application dated 28-01-2013 from
Shri D.G Doshi an employee of this office. The copy of the same has
been marked to your good
In this regard, our comments are as under:-
The main contention of the application of Shri Doshi is that in
pursuance to directions of Hon'ble Supreme Court of India vide its
order dated 03-05-1990 and subsequent guidelines from MOT letter
dated 01-07-2003 (copy enclosed that the option for switching over
from CDA, on voluntary basis would be available to employees in CDA
Pattern on prospective basis. The said guidelines conveyed by NTC Ltd
New Delhi vide letter dated 07-07-2003.
(Copy enclosed)
Subsequently, NTC Ltd. New Delhi vide letter No.DHR/59/(01)/03
dated 01-08-2003 (copy enclosed) has issued guidelines that where
promotion of CDA employees is involved only IDA scale will be
allowed.
Shri D.G. Doshi was working as Asstt. Officer (Legal) in legal
department of the then NTC (MN) Ltd Mumbai in pre-revised CDA
pay scale of Rs. 6500-200-10500. He was promoted w.e.f. 01-07-2005
and placed in corresponding IDA Pay scale of Rs. 8600-2520-14600 in
terms of the guidelines received from NTC Ltd. New Delhi vide letter
No.DHR/59/(01)/03 dated 01-08-2003.
The said promotion was accepted by him under protest (copy
enclosed).
Shri Doshi, since the date of his promotion i.e. 01-07-2005 has been
continuously requesting/demanding that he should be promoted from
CDA pay scale to CDA pay scale w.e.f. 01-07-2005 as per the above
guidelines of Hon'ble Supreme Court of India and MOT, as he has not
opted voluntarily to switch over from CDA to IDA, Further, he has also
requested to revise his salary from CDA to CDA of 6th CDA pay
revision w.e.f. 01-01-2006.
Since, Shri Doshi was in IDA Pay scale (on his promotion w.e.f. 01-07-
2005 which was accepted by him under protest) as on 01-01-2007 he
was extended the benefit of pay revision of IDA pay scale w.e.f. 01-01-
2007. Since the said pay revision of IDA pay scale w.e.f. 01-01-2007
was being accepted by him under protest/conditionally, he is being paid
salary in the pre-revised pay scale. The annual increment due on 01-01-
2011, 01-01-2012 and 01-01-2013 in pre-revised pay scale has already
been released to Shri Doshi.
Subsequent to receipt of letter dated 01-08-2003, as and when CDA
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employee has been promoted, they have been placed in IDA pay scale
only considering this as a policy except Shri. Doshi no other employee
has protested/demanded to be continued in CDA.
This for your kind perusal and necessary advice in the matter please.
This is issued with the approval of the CGM/RH.”
10. On 2nd December 2013, NTC issued an intimation to the Petitioner
informing him that he was due to retire on 31 st May 2014. The Petitioner
responded to the said letter, contending that the age of superannuation had been
wrongly fixed by NTC, as his services were governed by the BIR Act, under which
the age of superannuation is 60 years.
11. On 26th December 2013, NTC replied to the Petitioner’s letter and
reiterated their stand with respect to the Petitioner’s retirement. Subsequently, on
29th May 2014, NTC issued a superannuation notice to the Petitioner, informing
him that he would retire on 30th May 2014, as 31st May 2014 was a holiday.
12. As stated earlier, the Petitioner had joined the services of India United Mills
Limited No. 6- Dye Works as a temporary clerk and was subsequently confirmed
as Junior Clerk under the BIR Act. As per Clause 11A of the Standing Orders for
clerks, the age of superannuation was fixed at 60 years, with the provision that, if
found efficient, it could be extended up to 63 years.
13. It is this superannuation notice which the Petitioner seeks to challenge in
Writ Petition No. 2456 of 2014, contending that he is governed by the provisions
of the BIR Act and not by the Rules applicable to NTC. All the other Petitions
primarily concern the Petitioner’s employment with NTC, including matters
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relating to salary, provident fund contributions, and other retiral benefits. These
issues pertain to events dating as far back as 1990. Thus, the causes of action in all
the Petitions arose much earlier than the dates on which the Petitions were filed in
2014, and in all cases, after the Petitioner’s retirement on 31 st May 2014.
14. Affidavits-in-reply have been filed on behalf of NTC in all the aforesaid
Petitions. The common submissions and contentions in these replies are that the
Petitions suffer from delay and laches, as the causes of action in these Petitions
arose much earlier — in 1990, 2004, 2005, 2006, 2008, and 2011 — whereas the
Petitions were filed only in 2014. Specifically:
i. Writ Petition No. 3056 of 2014 and Writ Petition No. 2756 of 2014: Causes
of action arose in 1990, 2005, 2006, and 2008.
ii. Writ Petition No. 2757 of 2014: Cause of action arose in 2004.
iii. Writ Petition No. 2758 of 2014: Cause of action arose in 2011.
15. The affidavits also address the merits of the Petitioner’s contentions.
However, since all the Petitions were filed in 2014, long after the relevant causes of
action had arisen, the primary question for consideration is that of delay and laches.
16. In Writ Petition No. 3056 of 2014 an affidavit-in-reply on behalf of
Respondent Nos. 1, 3, 4, 5, and 6 has been filed by Mr. Prabhashankar Rajai
Mishra, working as Assistant Manager (Admin) of NTC (Western Region),
Regional Office, wherein a preliminary objection has been raised that the aforesaid
petition is misconceived and untenable inasmuch as disputed questions of fact have
been raised therein and the Petitioner has an alternative efficacious remedy to file a
suit if he is aggrieved in respect of the issues raised in the aforesaid petition. It is
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also contended in the aforesaid affidavit that the Petition has been filed after
superannuation of the Petitioner on 31 st May 2014 and the subject-matter of the
Petition is the alleged entitlement of the Petitioner to salary and other benefits in
the CDA Pattern w.e.f 1st July 2005. It is further contended that the Petitioner
himself, post his transfer w.e.f 1 st April 1990 from United Mills Limited No. 6 Dye
Works to NTC (MN) Ltd. accepted the IDA Pattern and therefore now he cannot
claim benefits under the CDA Pattern. The Petitioner continued to receive salary
under the IDA Pattern until his superannuation on 31 st May 2014. It is further
contended that as per the judgement of the Supreme Court of India dated 3 rd May
1990 and also the Office Memorandum dated 12 th June 1990, an option was
required to be given to the employees to shift from the CDA pattern to IDA
pattern of pay scales. The Office Memorandum dated 12 th June 1990 clearly
postulated that all employees on promotion on and after 1 st Jan 1989 are required
to be put in the IDA payscale. Therefore, the contention of the Respondents is that
all these are disputed question of fact and have been raised belatedly for an issue
which has arisen in the year 1990 and hence the same cannot now be entertained.
17. In Writ Petition No. 2456 of 2014 also Mr. Prabhashankar Rajai Mishra, has
filed an affidavit-in-reply on behalf of Respondent Nos. 1 and 2 and opposed the
admission of the aforesaid petition. It is submitted in the said affidavit that the
Petitioner has been now in the Employment of NTC and post his transfer from
Mill Grade Employees to NTC pay scale, his superannuation age is 58 years and he
will be governed by the terms and conditions of service as per the NTC Rules. It is
therefore submitted in the affidavit that the Petitioner was well aware of these rules
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and once he had accepted the same he would no longer be governed by the
Certified Standing Order under the BIR Act and would be governed by the NTC
rules and regulations.
18. In Writ Petition No. 2756 of 2014 an affidavit once again of Mr
Prabhashankar Rajai Mishra has been filed on behalf of Respondent Nos. 1, 3, 4, 5,
and 6, and in that too the contention of the Respondents is that all these are
disputed questions of fact and have been raised belatedly for an issue which has
arisen in the year 1990 and hence the same cannot now be entertained. Further the
Respondents have also submitted that the Petitioner has falsely suggested that there
has been a reduction in the Provident Fund contribution upon the transfer of the
Petitioner from Mill Grade Employee to NTC pay scale. It was also submitted that
there has been no breach of Section 12 of the Employees Provident Fund Act and it
is impermissible on the part of the Petitioner to raise this issue with regard to the so
called Section 12 Employees Provident Fund Act after a lapse of 24 years. The
relevant paragraphs of the affidavit are reproduced below-
(e) I further submit that all allegations raised in the said paragraph with
regard to the deduction in the salary of the Petitioner as on 1.4.1990 are false.
I repeat and reiterate whatever has been stated hereinabove. I further deny
that the Respondent No. 6 has been fully created a concocted document
dated 6.6.2013. The office order dated 01-10-1990 issued to the Petitioner is
relied upon by the Corporation. Hereto annexed and marked as Exhibit " A "
is a true copy of the said Office Order.
(f) I further say that as regards the notice dated 11.1.2013, the
Respondent Corporation has replied vide letter dated 12-06-2013 to Shri S.S.
Bagul, Enforcement officer EPFO. Hereto annexed and marked as Exhibit "B
" is the true copy of the Reply sent by the Respondent No. 6. I deny that
there has been any discrimination against the Petitioner. The internal note
dated 21.9.1990 in fact shows that this grievances were considered
sympathically by the Respondent No. 6 and the Petitioner was thereafter
placed in a higher pay scale. The arrears from 1.4.1990 were also paid to the
Petitioner based upon the decision taken by the Respondent No.6 to give the
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Higher grade. This fact is an admitted position and is denied by the
Petitioner.
(g) In reply to paragraph 9, 10 and 11 of the Petition, I deny the
allegations made therein. I say that the Judgment of Supreme Court in the
Jute Corporation case dated 3.5.1990 and the O.M. dated 12.6.1990 at
Exhibit C and D respectively to the Petition have not been correctly
interpreted or followed by the Petitioner. I say that with effect from 1.4.1990
ie. even before the Judgment of the Supreme Court of India, the Petitioner
was already placed in the CDA pattern of Pay Scales. He continued to be on a
CDA pattern of pay scales uptill 31-12-2005. Therefore, the reliance placed
on the aforementioned document is misplaced and misconceived. The
petitioner was not paid the salary under third CDA pay commission. The
petitioner was paid the salary under 4the CDA pay scale w.e.f. 01-04-1990.
The petitioner was placed from mill grade to NTC grade w.e.f. 01-04-1990
and not promoted. It is further denied that the Petitioner was demoted as
alleged in para 11 of the Petition. I further say that the benefit of agreement
dated 3.5.1990 was extended to the petitioner and additional amounts to be
paid under the said Agreement were paid to the Petitioner in May 1990. The
extract of the muster for the month of May 1990 shows that the said amount
was paid to the Petitioner. In respect of the other allegations in the said
paragraph, I submit that the said allegations have been refuted by the
Respondent No.6. By letter dated 21.1.2015 addressed to the Petitioner, the
Respondent No.6 has clarified the position. Repeated grievances made by the
Petitioner have been refuted on this count in the past as well. It is submitted
that mere repetition of a false allegation do not substantiate the allegations
which are known to be false. Hereto annexed and marked as Exhibit " C " is
the true copy of the said letter dated 21.1.2015. I deny that there has been any
deduction in the PF Account of the Petitioner. Firstly, the Petitioner was
placed in a higher pay scale retrospectively from 1.4.1990 as aforesaid.
Secondly, the total emoluments were much higher as on 1.4.1990 The gross
salary of Petitioner was increased with effect from 1.4.1990. Thirdly, on
account of arrears being paid in the higher pay scale, the total pay package
was enhanced substantially. The PF contribution therefore could not be set to
have been reduced. The reliance placed by the Petitioner on Exhibit G-1, G-
2 and H and I is misconceived in as much as the pay slip for the month of
June 1990 does not taking into account the subsequent retrospective arrears
paid to the Petitioner. The pay slip for the month of October 1990 does not
in any way demonstrate the so-called deduction in the PF amount.
(h) All allegations in paragraph 11 at page 15 to 17 are denied in toto. I
further deny that there is any violation committed by the Petitioner as regards
Section 12 of the PF Act.
(i) In reply to paragraph 12 of the Petition, I deny that the salary under
PF Act of the Petitioner was not protected on hisabsorption in the CDA
Pattern of pay scales w.e.f. 1.4.1990.
19. An affidavit-in-reply dated 9th December 2016 of Usha Shode APFC
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(Legal), working in Regional Provident Fund Office, Mumbai on behalf of
Respondent No. 2 has also been filed supporting the contentions as made by
Respondent Nos. 1, 3, 4, 5, and 6. The Petitioner has further filed a rejoinder dated
10th June 2015 denying the averments made by the Respondents in their respective
affidavits.
20. A similar affidavit-in-reply has been filed in Writ Petition No. 2757 of 2014
on behalf of Respondent Nos. 1, 3, 4, 5, and 6 and the following preliminary
objections have been raised, and the relevant paragraphs of the affidavit are
reproduced below-
4. At the outset, I submit that the present Petition is misconceived and
untenable on the following grounds which are taken without prejudice to one
another:-
(a) It is submitted that the present Petition raises disputed questions of fact
and cannot be gone into in a Writ Petition under Article 226 of the
Constitution of India. Even if the Respondent No.5 is a government
company registered under Section 617 of the Companies Act, 1956.
(b)It is submitted that the Petitioner has an alternate efficacious remedy and
is required to file a suit if he is aggrieved in respect of the issues raised in the
present Petition. A Writ Petition in thisHon'ble Court is not maintainable.
(c) I say that the subject matter of the present Petition is the alleged
nonpayment of PF contribution on the arrears of merger of 50% DA in basic
Pay. The arrears of merger of 50% DA in Basic was paid in the year 2008.
The P.F. Contribution at the rate 10% has been deducted on the said
21. An affidavit-in-reply dated 11th January 2017 of Usha Shode APFC (Legal),
on behalf of Respondent No. 2 has also been filed supporting the contentions as
made by Respondent Nos. 1, 3, 4, 5, and 6. The Petitioner has further filed a
rejoinder dated 10th June 2015 denying the averments made by the Respondents in
their respective affidavits.
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22. A similar affidavit-in-reply has also been filed in Writ Petition No. 2758 of
2014 on behalf of Respondent Nos. 1, 3, 4, 5, and 6. The Respondents have raised
the following preliminary objections in the affidavit, relevant paragraphs which are
reproduced below-
4. At the outset, I submit that the present Petition is misconceived and
untenable on the following grounds which are taken without prejudice to one
another:-
a. It is submitted that the present Petition raises disputed questions of
fact and cannot be gone into in a Writ Petition under Article 226 of the
Constitution of India. Even if the Respondent No.5 is a government
company registered under Section 617 of the Companies Act, 1956.
b. It is submitted that the Petitioner has an alternate efficacious remedy
and is required to file a suit if he is aggrieved in respect of the issues raised in
the present Petition. A Writ in this Hon’ble Court is not maintainable.
c. I say that the subject matter of the present Petition is the alleged
nonpayment of PF contribution on the first installment of Rs. 1,10,000/-
which was mistakenly paid to the Petitioner towards arrears of IDA Pay
Revision. In fact, the Petitioner was not entitled to the said amount at all as
he had refused to accept the pay revision in the IDA pattern of scales
unconditionally when the same was offered to him vide office letter dated
30.6.2010. Since the pay revision itself was not accepted by him, the question
of paying any arrears to the Petitioner did not arise. However, the first
installment paid to various other IDA Pattern employees was extended to
him through oversight.
23. An affidavit in reply dated 29th December 2017 of Usha Shode APFC
(Legal), on behalf of Respondent No. 2 has also been filed supporting the
contentions as made by Respondent Nos. 1, 3, 4, 5, and 6. The Petitioner has
further filed a rejoinder dated 17th June 2015 denying the averments made by the
Respondents in their respective affidavits.
24. On a perusal of the affidavits filed by the Respondents it is clear that all the
issues raised by the Petitioner are disputed questions of facts and that these
petitions suffer from considerable delay and ought not to be entertained and
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dismissed solely on the ground of delay and laches. The cause of action in all these
petitions has arisen much prior in point of time the reliefs prayed for are post the
retirement of the Petitioner.
25. Learned counsel Mr. Tejas Dande appeared on behalf of the Petitioner and
learned counsel Ms. Meena H. Doshi appeared on behalf of the Respondents.
26. We have perused the papers and proceedings with the assistance of learned
counsels on behalf of the Petitioner and the Respondents and now proceed to
decide the aforesaid Petitions filed by the Petitioner.
27. Insofar as the Petitioner’s prayer that his age of retirement should have been
60 years instead of 58 years, and consequently the challenge to the superannuation
notice issued to him in Writ Petition No. 2456 of 2014, is concerned, we are of the
view that this submission deserves to be dismissed at the very threshold. This is for
the reason that the Petition has been filed after the Petitioner had already
superannuated on 31st May 2014.
28. The Petitioner retired upon attaining superannuation on 31 st May 2014.
Further, since the Petitioner had been transferred to the employment of NTC
pursuant to the 1974 Act, and hence his employment was governed by the
provisions thereof. Section 14 of the 1974 Act is relevant and is reproduced below
for reference:
“14. Employment of certain employees to continue.—(1) Every person who
is a workman within the meaning of the Industrial Disputes Act, 1947 (14 of
1947), and has been, immediately before the appointed day, employed in a
sick textile undertaking shall become, on and from the appointed day, an
employee of the National Textile Corporation, and shall hold office or service
in the National Textile Corporation with the same rights and privileges as to
pension, gratuity and other matters as would have been admissible to him if
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the rights in relation to such sick textile undertaking had not been transferred
to, and vested in, the National Textile Corporation, and shall continue to do
so unless and until his employment in the National Textile Corporation is
duly terminated or until his remuneration, terms and conditions of
employment are duly altered by the National Textile Corporation.
(2) Every person who is not a workman within the meaning of the Industrial
Disputes Act, 1947 (14 of 1947), and who has been, immediately before the
appointed day, employed in a sick textile undertaking shall, in so far as such
person is employed in connection with the sick textile undertaking which has
vested in the National Textile Corporation, become, as from the appointed
day, an employee of the National Textile Corporation and shall hold his
office or service therein by the same tenure, at the same remuneration and
upon the same terms and conditions and with the same rights and privileges
as to pension and gratuity and other matters as he would have held the same
under the sick textile undertaking if it had not vested in the National Textile
Corporation and shall continue to do so unless and until his employment in
the National Textile Corporation is duly terminated or until his
remuneration, terms and conditions of employment are duly altered by the
National Textile Corporation: Provided that in respect of any sick textile
undertaking the management of which could not be taken over by the
Central Government under the Sick Textile Undertakings (Taking Over of
Management) Act, 1972 (72 of 1972), by reason of any decree, order or
injunction of any court, any agent, director (including a managing or whole-
time director, by whatever name called) or manager shall not become an
employee of the National Textile Corporation.
(3) Notwithstanding anything contained in the Industrial Disputes Act, 1947
(14 of 1947), or in any other law for the time being in force, the transfer of
the services of any officer or other person employed in a sick textile
undertaking to the National Textile Corporation shall not entitle such officer
or other employee to any compensation under this Act or any other law for
the time being in force and no such claim shall be entertained by any court,
tribunal or other authority.
(4) Where, under the terms of any contract of service or otherwise, any
person whose services become terminated or whose services become
transferred to the National Textile Corporation by reason of the provisions of
this Act is entitled to any arrears of salary or wages or any payment for any
leave not availed of or other payment, not being payment by way of gratuity
or pension, such person may, except to the extent such liability has been
taken over by the Central Government under section 5, enforce his claim
against the owner of the sick textile undertaking but not against the Central
Government or the National Textile Corporation.”
(Emphasis supplied)
29. On a plain reading of Section 14(1) of the 1974 Act, it is clear that
every person who has been a workman within the meaning of the Industrial
Disputes Act, 1947, and who was employed immediately before the appointed date
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in a sick textile undertaking, shall, on and from the appointed day, become an
employee of the NTC. Such employee shall hold office or service therein on the
same tenure, at the same remuneration, and upon the same terms and conditions,
with the same rights and privileges as to pension, gratuity, and other matters, as he
would have been entitled to if the rights in relation to the sick textile undertaking
had not been transferred to and vested in the NTC, and shall continue to do so
unless and until his remuneration or terms and conditions of employment are duly
altered by the NTC.
30. It therefore becomes clear that once a workman has been employed
in a sick textile undertaking, then he will be governed by the same service
conditions even after he is absorbed by NTC, unless his renumeration or terms and
conditions of employment are later altered by the NTC. In the facts of the present
case, the Petitioner was transferred to NTC, and his employment thereafter was
governed under the NTC Recruitment and Promotional Rules (M.N.). Further, the
Office Order dated 24th May 1990 (Exhibit C to Petition No. 2456 of 2014)
categorically records as follows:
“OFFICE ORDER
Shri D.G.Doshi, Jr.Clerk, Indla United Mills Dyeworks, transferred to
Corporate Office is fitted in the NTC Pay Scale of Rs.425-15-500-EB-15-
560-20-700 at Basic Pay of Rs,530/- (Rupees Five Hundred Thirty only) per
month wie.f. 1-4-1990 and is designated as Assistant subject to following
conditions.
1. While in service of this Corporation, he is Liable for transfer anywhere in
India in any post, Shift, Dept. at the discretion of Management and to the
Holding Co., viz NIC Lta, New Delhi or any of its Subsidiaries or Mill Units.
2.He shall be governed by the rules and regulations of the Corporation is
supersession of earlier Awards/Agreements under BIR Act.
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3.He will draw next annual increment on 6-7-1990.”
31. In response to the aforesaid office order dated 24 th May 1990, the Petitioner
by a representation dated 3rd July 1990 to the NTC raised the grievance pertaining
to his age of retirement being reduced to 58 years from 60 years. NTC had
thereafter through the Office Order dated 1 st October 1990, in response to the
representation made by the Petitioner, placed the Petitioner in the revised pay scale
of Rs. 1640/-. The Petitioner signed and endorsed the office order dated 1 st
October 1990 in settlement of his grievances in the representation dated 3 rd July
1990 and therefore by his conduct accepted the terms of his employment with
NTC. Consequently, once the Petitioner himself had accepted the terms of
employment we do not find any merit in the Petitioner’s submission that he should
have retired at the age of 60 under the BIR Act, instead of at the age of 58 in
accordance with the conditions of service of NTC. Section 14(1) of the 1974 Act is
very clear, that if terms and conditions of employment are altered by NTC, then
the workman is governed by the said terms.
32. Once the Petitioner accepted the office order for employment with NTC,
the stand taken by him that his age of retirement should be 60 instead of 58 years
becomes untenable and unsustainable. In view thereof, we have no hesitation in
holding that the consequent prayers in Writ Petition No. 2456 of 2014 for
reinstatement of the Petitioner from 1st June 2014 until the age of superannuation
under the BIR Act, and for grant of full salary, applicable allowances, and other
mandatory benefits, cannot be entertained.
33. We also note that Writ Petition No. 2456 of 2014 was filed much after the
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retirement of the Petitioner on 31 st May 2014 and in this view as well, the Petition
ought to be dismissed.
34. As regards the other Petitions, we decline to examine the prayers on merits,
as all the reliefs sought therein have been claimed after inordinate delay. As noted
above, the causes of action in respect of these Petitions arose as early as 1990, and
later in 2004, 2005, 2006, 2008, and 2011, whereas all the Petitions have been
filed only in 2014. Further, many of the reliefs sought in the Petitions involve
disputed questions of fact, for which the appropriate remedy is to file civil suits —
which the Petitioner has not availed of.
35. It is therefore our considered view that all the other Writ Petitions, i.e., Writ
Petition Nos. 2756 of 2104, 2757 of 2014, 2758 of 2014, and 3056 of 2014, are
hopelessly time-barred and suffer from delay and laches.
36. It is well-settled in law that in writ proceedings, a Petitioner cannot sleep
over his rights and, after inordinate delay, approach the Court to assert those rights.
A Petitioner who approaches the Court belatedly, awakening from such a long
delay, cannot ordinarily be granted extraordinary relief by a Writ Court. Delay or
laches are a relevant factor to be borne in mind while exercising discretionary
powers under Article 226 of the Constitution of India.
37. This Court and the Supreme Court of India have time and again reiterated
the aforesaid principles. The Supreme Court, in particular, in a recent decision
rendered in Mrinmoy Maity v. Chhanda Koley and Others 1 has emphasised the
significance of delay and laches in the grant of extraordinary reliefs. The relevant
1 2024 INSC 314
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paragraphs of Mrinmoy Maity v. Chhanda Koley and Others (supra) are
reproduced below:-
“9. Having heard rival contentions raised and on perusal of the facts obtained
in the present case, we are of the considered view that writ petitioner ought to
have been non-suited or in other words writ petition ought to have been
dismissed on the ground of delay and laches itself. An applicant who
approaches the court belatedly or in other words sleeps over his rights for a
considerable period of time, wakes up from his deep slumber ought not to be
granted the extraordinary relief by the writ courts. This Court time and again
has held that delay defeats equity. Delay or laches is one of the factors which
should be born in mind by the High Court while exercising discretionary
powers under Article 226 of the Constitution of India. In a given case, the
High Court may refuse to invoke its extraordinary powers if laxity on the part
of the applicant to assert his right has allowed the cause of action to drift away
and attempts are made subsequently to rekindle the lapsed cause of action.
10. The discretion to be exercised would be with care and caution. If the
delay which has occasioned in approaching the writ court is explained which
would appeal to the conscience of the court, in such circumstances it cannot
be gainsaid by the contesting party that for all times to come the delay is not
to be condoned. There may be myriad circumstances which gives rise to the
invoking of the extraordinary jurisdiction and it all depends on facts and
circumstances of each case, same cannot be described in a straight jacket
formula with mathematical precision. The ultimate discretion to be exercised
by the writ court depends upon the facts that it has to travel or the terrain in
which the facts have travelled.
11. For filing of a writ petition, there is no doubt that no fixed period of
limitation is prescribed. However, when the extraordinary jurisdiction of the
writ court is invoked, it has to be seen as to whether within a reasonable time
same has been invoked and even submitting of memorials would not revive
the dead cause of action or resurrect the cause of action which has had a
natural death. In such circumstances on the ground of delay and laches alone,
the appeal ought to be dismissed or the applicant ought to be non-suited. If it
is found that the writ petitioner is guilty of delay and laches, the High Court
ought to dismiss the petition on that sole ground itself, in as much as the writ
courts are not to indulge in permitting such indolent litigant to take
advantage of his own wrong. It is true that there cannot be any waiver of
fundamental right but while exercising discretionary jurisdiction under
Article 226, the High Court will have to necessarily take into consideration
the delay and laches on the part of the applicant in approaching a writ court.
This Court in the case of Tridip Kumar Dingal and others v. State of W.B and
others., (2009) 1 SCC 768 has held to the following effect:
“56. We are unable to uphold the contention. It is no doubt true that
there can be no waiver of fundamental right. But while exercising
discretionary jurisdiction under Articles 32, 226, 227 or 136 of the
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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 [AIR 1964 SC 1006
: (1964) 6 SCR 261] , Moon Mills Ltd. v. Industrial Court [AIR 1967
SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 :
(1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle applies even
in case of an infringement of fundamental right (vide Tilokchand
Motichand v. H.B. Munshi [(1969) 1 SCC 110] , Durga Prashad v.
Chief Controller of Imports & Exports [(1969) 1 SCC 185] and
Rabindranath Bose v. Union of India [(1970) 1 SCC 84] ).
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.”
(emphasis supplied)
12. It is apposite to take note of the dicta laid down by this Court in
Karnataka Power Corportion Ltd. and another v. K. Thangappan and
another, (2006) 4 SCC 322 whereunder it has been held that the High Court
may refuse to exercise extraordinary jurisdiction if there is negligence or
omissions on the part of the applicant to assert his right. It has been further
held thereunder:
“6. Delay or laches is one of the factors which is to be borne in mind by
the High Court when they exercise their discretionary powers under
Article 226 of the Constitution. In an appropriate case the High Court
may refuse to invoke its extraordinary powers if there is such
negligence or omission on the part of the applicant to assert his right as
taken in conjunction with the lapse of time and other circumstances,
causes prejudice to the opposite party. Even where fundamental right is
involved the matter is still within the discretion of the Court as pointed
out in Durga Prashad v. Chief Controller of Imports and Exports
[(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has
to be exercised judicially and reasonably.
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7. What was stated in this regard by Sir Barnes Peacock in Lindsay
Petroleum Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR
492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v.
M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri
Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC
329] . Sir Barnes had stated: “Now, the doctrine of laches in courts of
equity is not an arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy either because the party has, by his
conduct done that which might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and neglect he has though perhaps
not waiving that remedy, yet put the other party in a situation in which
it would not be reasonable to place him if the remedy were afterwards
to be asserted, in either of these cases, lapse of time and delay are most
material. But in every case, if an argument against relief, which
otherwise would be just, is founded upon mere delay, that delay of
course not amounting to a bar by any statute of limitation, the validity
of that defence must be tried upon principles substantially equitable.
Two circumstances always important in such cases are, the length of the
delay and the nature of the acts done during the interval which might
affect either party and cause a balance of justice or injustice in taking
the one course or the other, so far as it relates to the remedy.”
8. It would be appropriate to note certain decisions of this Court in
which this aspect has been dealt with in relation to Article 32 of the
Constitution. It is apparent that what has been stated as regards that
article would apply, a fortiori, to Article 226. It was observed in
Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : AIR 1970 SC
470] that no relief can be given to the petitioner who without any
reasonable explanation approaches this Court under Article 32 after
inordinate delay. It was stated that though Article 32 is itself a
guaranteed right, it does not follow from this that it was the intention
of the Constitution-makers that this Court should disregard all
principles and grant relief in petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 :
AIR 1987 SC 251] that the High Court in exercise of its discretion does
not ordinarily assist the tardy and the indolent or the acquiescent and
the lethargic. If there is inordinate delay on the part of the petitioner
and such delay is not satisfactorily explained, the High Court may
decline to intervene and grant relief in exercise of its writ jurisdiction. It
was stated that this rule is premised on a number of factors. The High
Court does not ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public inconvenience
and bring, in its train new injustices, and if writ jurisdiction is exercised
after unreasonable delay, it may have the effect of inflicting not only
hardship and inconvenience but also injustice on third parties. It was
pointed out that when writ jurisdiction is invoked, unexplained delay
coupled with the creation of third-party rights in the meantime is an
important factor which also weighs with the High Court in deciding
whether or not to exercise such jurisdiction.”
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13. Reiterating the aspect of delay and laches would disentitle the
discretionary relief being granted, this Court in the case of Chennai
Metropolitan Water Supply & Sewerage Board and others v. T.T. Murali
Babu, (2014) 4 SCC 108 has held:
“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.”
14. Having regard to the afore-stated principles of law enunciated herein
above, when we turn our attention to facts on hand, it would not detain us
for too long for accepting the plea of the appellant in affirming the order of
the Learned Single Judge and dismissing the writ petition on the ground of
delay and laches. We say so for reasons more than one, firstly, it requires to be
noticed that the writ petitioner was a rival applicant along with the appellant
herein for grant of LPG distributorship and she along with the appellant
herein, were found to be eligible and the appellant herein was held to be
successful by virtue of draw of lots. This factual aspect would reflect that the
writ petitioner was aware of all the developments including that of the
allotment of distributorship having been made in favour of the appellant
herein way back in 2014, yet did not challenge and only on acceptance of the
alternate land offered by the appellant in March, 2017 and permitting him to
construct the godown and the showroom. Same was challenged in the year
2017 and thereby the writ petitioner had allowed his right if at all if any to be
drifted away or in other words acquiesced in the acts of the Corporation and
as such on this short ground itself the appellant has to succeed…”
38. In view of the aforesaid, as Writ Petition Nos. 2756 of 2104, 2757 of 2014,
2758 of 2014, and 3056 of 2014 have been filed belatedly and the Petitioner seeks
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to exert rights which have become stale and dead, therefore we are not inclined to
entertain these Petitions.
39. Insofar as the issue of pension, which the Petitioner has sought to raise
during the course of the hearing of these Petitions, is concerned, we leave it open to
the Petitioner to make an appropriate representation to NTC. The same shall be
considered expeditiously by NTC, preferably within a period of two months from
the date this order is made available to them by the Petitioner.
40. The Writ Petitions are accordingly dismissed in view of the above terms. No
costs.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
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