equity aids the vigilant and not those who slumber on their
rights. It is defined as neglect to assert a right or claim which,
taken together with the lapse of time and other circumstances
causing prejudice to adverse party, operates as bar in Court of
equity. The elements of laches are – (i) unreasonable lapse of
time, (ii) neglect to assert a right or claim, (iii) to the detriment
of another. If these three elements are met, then the doctrine
of laches will act as a bar in Court.
Laches is, therefore, considered as an unreasonable
delay in pursuing a right or claim. In a way it prejudices the
opposing party. When asserted in litigation, it is an equitable
defence, or doctrine. The person invoking laches is asserting
that an opposing party has slept of on his “right” and that as a
result of this delay, circumstances have changed such that it is
no longer just to grant the petitioner’s claim. To put in other
way, failure to assert one’s right in a timely manner results in a
claim being barred by laches.
Laches is a defence to a proceeding in which a
petitioner seeks equitable relief. Cases in equity are
distinguished from cases at law by the type of remedy, or
judicial relief, sought by the petitioner. Generally, law cases
involve a problem that can be solved by the payment of
monetary damages. Equity cases involve remedies directed by
the Court against a party. The law encourages a speedy
resolution for every dispute. Cases in law are governed by
statutes of limitation, which are lodged that determine how long
a person has to file a law suit before the right to sue expires.
Different types of injuries have different time periods in which
to file a law suit. Laches is the equitable equivalent of statutes
of limitation. However, unlike statutes of limitation, laches
leaves it up to the Court to determine, based on the unique
facts of the case, whether a petitioner has waited too long to
seek the relief.
In the case of Shankara Cooperative Housing
Society Limited Vs. M. Prabhakar & ors., reported in
(2011) 5 SCC 607, the Apex Court in para 46 and 47 has held
as follows:-
“46. Delay and laches is one of the factors that
requires 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, (1874) LR 5 PC 221, which was approved
by this Court in Moon Mills Ltd. V. Industrial Court,
AIR 1967 SC 1450 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.”
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) NO. 426 OF 2013
Shri Prasanna Hari Jamatia,
V
The State of Tripura,
BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
THE HON’BLE MR. JUSTICE S. C. DAS
Dated : 03.03.2015.
By filing this writ petition the petitioner prayed for
issuing appropriate writ(s) directing the respondents to
reinstate him in the service of Tripura State Rifles (for short
‘TSR’), 2nd Bn in the post of Havildar from which he was
discharged by an order dated 16.03.1999, issued by respondent
No.4 and also prayed for allowing him all service benefits.
2. Heard learned counsel, Mr. S. S. Debnath, for the
petitioner and learned Government Advocate, Mr. T. D.
Majumder for the State-respondents.
3. The petitioner in his affidavit, inter alia, contended
that he joined TSR 1st Bn as a Rifleman on 01.09.1985 and had
been serving with all his sincerity and devotion to the
satisfaction of his authority. On 01.08.1991 he was promoted
to the rank of LNK and thereafter on 12.08.1993 he was further
promoted to the rank of NK. Subsequently, he was promoted
to the rank of Havildar in the 1st Bn of TSR on 25.11.1995. On
04.12.1995 he was posted in the 2nd Bn of TSR.
It is the case of the petitioner that on 04.12.1998
he applied to the Commandant 2nd Bn. TSR, R.K.Nagar for
granting him five days’ casual leave with permission to leave
station for the treatment of his father, who was seriously ill.
On 05.12.1998 he left the station with verbal permission from
the Station Officer in anticipation of granting of the casual
leave. On reaching home he arranged for the treatment of his
father, but his father expired on 07.12.1998. On 09.12.1998
he again applied for 27 days’ earned leave w.e.f. 05.12.1998 in
cancellation of his earlier prayer of five days’ casual leave and
sent his application to the Commandant 2nd Bn TSR by special
messenger. On 01.01.1999 he reported for his duties, but he
was not allowed to join. He was waiting in the 2nd Bn
Headquarters for seven days and attended the office, but he
was shown absent. After staying for seven days, he returned
home being compelled since his joining was not accepted.
On 16.03.1999 he was terminated from the service
by the Commandant 2nd Bn TSR issuing Memo dated
16.03.1999 (Annexure-IV to the writ petition) and before
issuance of such termination order, no notice was issued and no
disciplinary proceeding was initiated against him. He did not
get any warning letter or notice from the authority. The order
of discharge was issued invoking the provision of Rule 15(3) of
the Tripura State Rifles (Recruitment) Rules, 1984 (for short
‘Rule 1984’) and that rule was not applicable to the case of the
petitioner since the petitioner was a regular staff of the TSR and
he was not on probation. He was even not given one month’s
salary as per the provision of Rule 15(3) ibid. He was wrongly
and illegally dismissed/terminated from the job without
affording him any opportunity of being heard and so, the order
of dismissal is liable to be interfered and set aside.
On 03.06.2013 he made an application before the
Director General of Police, Tripura requesting him to reinstate
him in the service, but that was not entertained. On
17.10.2013 a notice was issued to the Inspector General of
police through his Advocate seeking reinstatement, but that
was also refused. It is further contended by the petitioner that
since after dismissal from service he was suffering from
financial distress and, therefore, he could not approach the
Court and recently he was given free legal aid by the learned
counsel and thereafter he approached the Court by filing this
writ petition seeking the relief as stated herein before.
4. The respondents by filing counter affidavit
contended that the writ petition is bad for delay and laches and
it is stated that equity aids the vigilant, not those who slumber
on their rights. Because of long delay and laches the post
which was vacated due to termination of the petitioner had
been filled up by other person and, therefore, the relief sought
by the petitioner cannot be granted by this Court after lapse of
15 years.
The respondents contended that the petitioner
without taking any permission from the competent authority left
his place of posting, Baganban Outpost, on 05.12.1998. The
respondents also contended that no application for leave dated
04.12.1998 filed by the petitioner was received by the
respondents and no such application dated 09.12.1998 for
earned leave was also received by the respondents and the
petitioner was unauthorizedly absent from his duties w.e.f.
05.12.1998.
It is also contended that the petitioner was not a
confirmed employee in the post of Havildar at the relevant point
of time of his dismissal and, therefore, respondent No.4 rightly
terminated him from the job invoking the power under Section
15(3) of the Rules 1984. Before issuing order dated
16.03.1999 all opportunities were given to the petitioners, but
he did not avail those opportunities. Notice by registered post
was issued to him three times, which were sent to his address,
but he did not turn up. The copies of those notices dated
28.12.1998, 11.01.1999 and 15.02.1999 annexed with the
counter affidavit as Annexure-R/1 series. He was initially asked
to join his duties, since he was unauthorizedly absent, but he
did not respond. Thereafter, show cause notices dated
11.01.1999 and 15.02.1999 were issued, but he did not
respond and, therefore, there was no other option open before
the authority except terminating him from the service. After
such termination on 16.03.1999, he was sleeping over the issue
and never challenged it. He could have filed an appeal before
the superior authority as per rules, but he did not avail this
scope. One month’s salary could not be given to him since he
was not traceable and since he did not claim the one month’s
salary within a month from the date of his dismissal, he is not
entitled to get it. The writ petition is hopelessly barred by delay
and laches and, therefore, it should be dismissed.
5. Mr. Debnath, learned counsel appearing for the
petitioner candidly submitted that the petitioner was appointed
on 01.09.1985 as a Rifleman of TSR 1st Bn and he completed
the period of probation satisfactorily and thereafter he was
confirmed in the post of Rifleman, which is evident since he was
promoted in the rank of LNK on 01.08.1991 and then promoted
to the rank of NK on 12.08.1993 and lastly promoted in the
rank of Havildar on 25.11.1995. Since he was a confirmed staff
of TSR force, Rule 15 of Rule 1984 was not applicable in his
case. Only after a regular proceeding he could have been
dismissed and, therefore, the order of dismissal from service
dated 16.03.1999 (Annexure-IV to the writ petition) is palpably
illegal and liable to be interfered.
6. Learned Government Advocate, on the other hand,
has submitted that the petitioner was promoted in the rank of
Havildar on 25.11.1995 and he was not confirmed in the post of
Havildar and, therefore, termination from service invoking the
provision of Rule 15 was justified.
7. Rule 15 of the Rules 1984 reads as follows :-
“15. Period of service.
A member of the Rifles shall be on probation
for the period of 3 years during which period he
shall be liable to discharge at any time on one
month notice or on payment of one month’s salary
in lieu of the same under the orders of the
appointing authority.
(2) At the end of the period of probation of
three years, a members’ may be confirmed and if
he is not confirmed, he may be considered for
being declared as quasi-permanent by the
appointing authority.
(3) If a member is not declared confirmed or
quasi-permanent under sub-rule (2) as the case
may be, by the appointing authority, he shall
continue to be deemed as temporary member of
the Rifles, liable to discharge at any time on one
month’s notice or on payment of one month’s
salary in lieu of the same under the orders of his
appointing authority.
(4) A quasi-permanent member of the Rifles
shall be liable to discharge on three month’s notice
or on payment of three month’s salary in lieu of the
same under the orders of his appointing authority.
(5) The power to confirm a member of Rifles
shall vest in his appointing authority.
(6) Should the State Government decide at
any time to disband the Rifles or any part of it,
either before termination of the period for which a
member of the Rifles is enrolled or at any time
thereafter, he shall be liable to discharge without
compensation from the date of disbandment.”
8. It is an admitted position that the petitioner was
appointed in the post of Rifleman of TSR on 01.09.1985 and
while in service he got three promotions and the last promotion
in the post of Havildar on 25.11.1995. Nothing is produced by
the respondents that the petitioner was in probation in the post
of Havildar after his promotion on 25.11.1995. In the absence
of any such document or any provision in the relevant Act and
Rules, the stand of the respondents that the petitioner was not
confirmed in the post of Havildar or that he was on probation,
cannot be entertained and, therefore, discharge of the
petitioner from the service invoking the power prescribed under
Rule 15 of the Rules 1984 was per se not tenable in law.
9. The petitioner contended that he applied for five
days’ casual leave on 04.12.1998 on the ground of his father’s
illness. In support thereof the petitioner annexed a copy of the
petition marked as Annexure-I, but there is no endorsement on
the copy that such application was received by the office of the
respondents. Similarly, the petitioner stated that on
09.12.1998 he made another application for 27 days’ earned
leave cancelling the casual leave application of five days and
that application was sent by messenger to the respondents.
But on that copy of the application, which is marked as
Annexure-II, there is no endorsement that such application was
received by the respondents. The petitioner, therefore, has
failed to prove that he made applications for leave and those
applications were received by the respondents. He has also
failed to prove the fact as to who authorized him to leave the
place of posting. The petitioner in his petition stated that he
left the place of posting after taking verbal permission of the
Station Officer, but nothing stated in details that who was the
Station Officer permitted him to leave. The respondents
specifically denied the fact and stated that the petitioner left
the place of posting without taking any permission from the
competent authority. The respondents by filing Annexure-R/1
series brought on record a notice dated 28.12.1998 asking the
petitioner to join his duties and also two other show cause
notices dated 11.101.1999 and 15.02.1999. The petitioner
contended that he has not received any such notice. The
respondents contended that those notices were sent by
registered post. It is, therefore, clear that the petitioner did
not care at all as to what was happening as to his job while his
leave was not sanctioned and he was not permitted to join his
duties.
10. Now, the question is whether this Court should
interfere in the order after lapse of more than 15 years. Since
after dismissal on 16.03.1999, admittedly the petitioner was
sleeping over the issue. The petitioner contended that he was
frustrated after issuance of his termination order dated
16.03.1999 and thereafter because of financial distress he
could not approach the Court. He has contended that his
engaged learned counsel offered him free legal aid and,
therefore, he could approach the Court. No other reason has
been assigned.
11. The petitioner was working in the rank of Havildar
of TSR. He is not a lay man. If he was in financial distress, he
would approach the legal services authority for legal assistance,
but he never approached the legal services authority. If he
could approach the present learned counsel to afford him legal
aid, he could make such approach immediately after he was
discharged from the service and not after 15 years. Practically
the petitioner assigned no satisfactory reason at all for his
approaching the Court at such a belated stage. The case of the
petitioner, therefore, suffers from the mischief of delay and
laches.
12. “The doctrine of laches” is based upon maxim that
equity aids the vigilant and not those who slumber on their
rights. It is defined as neglect to assert a right or claim which,
taken together with the lapse of time and other circumstances
causing prejudice to adverse party, operates as bar in Court of
equity. The elements of laches are – (i) unreasonable lapse of
time, (ii) neglect to assert a right or claim, (iii) to the detriment
of another. If these three elements are met, then the doctrine
of laches will act as a bar in Court.
Laches is, therefore, considered as an unreasonable
delay in pursuing a right or claim. In a way it prejudices the
opposing party. When asserted in litigation, it is an equitable
defence, or doctrine. The person invoking laches is asserting
that an opposing party has slept of on his “right” and that as a
result of this delay, circumstances have changed such that it is
no longer just to grant the petitioner’s claim. To put in other
way, failure to assert one’s right in a timely manner results in a
claim being barred by laches.
Laches is a defence to a proceeding in which a
petitioner seeks equitable relief. Cases in equity are
distinguished from cases at law by the type of remedy, or
judicial relief, sought by the petitioner. Generally, law cases
involve a problem that can be solved by the payment of
monetary damages. Equity cases involve remedies directed by
the Court against a party. The law encourages a speedy
resolution for every dispute. Cases in law are governed by
statutes of limitation, which are lodged that determine how long
a person has to file a law suit before the right to sue expires.
Different types of injuries have different time periods in which
to file a law suit. Laches is the equitable equivalent of statutes
of limitation. However, unlike statutes of limitation, laches
leaves it up to the Court to determine, based on the unique
facts of the case, whether a petitioner has waited too long to
seek the relief.
13. In the case at hand, the petitioner was discharged
from the service on 16.03.1999. He was sleeping over the
issue for more than 15 years. It is stated that he made first
representation on 03.06.2013 to the Director General of Police
and thereafter he sent an Advocate’s notice through his counsel
on 17.06.2013 and those were responded by the respondents
informing the petitioner that he was discharged from the job on
16.03.1999 and he did not prefer any appeal as per rules within
statutory period of time and, therefore, his representation could
not be entertained. Since the petitioner was sleeping over this
right for a pretty long time, this Court, in our considered
opinion, should be loathe in granting any relief to the petitioner.
The Court should not exercise its extraordinary jurisdiction to
unsettle a thing which has been settled during last 15 years.
14. The Supreme Court in the case of State Bank of
Indore Vs. Govindrao, reported in (1997) 2 SCC 617, in a
case where the writ petitioner was dismissed from service and
he filed writ petition after 10 years for his reinstatement which
was entertained by the High Court wherein the Apex Court has
observed that there was no reason for the High Court, after a
long lapse of nearly ten years from the date of the order of
dismissal, to entertain the writ petition and quash the order of
dismissal. The Apex Court was of the view that the High Court
should not have entertained that at all. It should have
dismissed in limine.
15. In the case of Government of Andhra Pradesh &
ors. Vs. M. A. kareem & ors., reported in 1991 Supp (2)
SCC 183, the Apex Court in a case where a petition was
entertained after 13 years has observed that the Courts and
Tribunals should be slow in disturbing the settled affairs in a
service after such a long period.
16. In the case of Shankara Cooperative Housing
Society Limited Vs. M. Prabhakar & ors., reported in
(2011) 5 SCC 607, the Apex Court in para 46 and 47 has held
as follows:-
“46. Delay and laches is one of the factors that
requires 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, (1874) LR 5 PC 221, which was approved
by this Court in Moon Mills Ltd. V. Industrial Court,
AIR 1967 SC 1450 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.”
17. The present writ petition of the petitioner, in our
considered opinion, is suffering from the mischief of delay and
laches and, therefore, we are not inclined to interfere with
order dated 16.03.1999 passed by respondent No.4,
discharging the petitioner from service.
18. The petitioner joined the services of TSR as a
Rifleman on 01.09.1985. Thereafter he got three promotions
and the last promotion in the post of Havildar, he got on
25.11.1995. He left his place of posting on 05.12.1998. He
seems to have abandoned the job, for which the competent
authority by impugned order dated 16.03.1999 “summarily
discharged” him from TSR services under Rule 15(3) of TSR
(Recruitment) Rules, 1984 for his unauthorized prolonged
absence from duty. We have already held that Rule 15(3) was
not applicable in the case of the petitioner, since petitioner was
not on probation and so, the order of discharge dated
16.03.1999 was not justified. However, we decline to interfere
in the order of discharge, since the writ petition suffers from
delay and latches. The petitioner admittedly served the TSR
from 01.09.1985 till the date of his discharge without break.
Under such circumstances, we consider it appropriate to direct
the respondents to give all service benefits as per Rules to the
petitioner for the period he served the TSR.
19. Accordingly, the writ petition is dismissed with the
observation that the petitioner should be given all his service
benefits for the period he served the TSR in different capacity,
during the period from 01.09.1985 to 16.03.1999 and the
respondents are directed to give such benefits within 60(sixty)
days from today.
20. The parties are directed to bear their own costs.
JUDGE CHIEF JUSTICE
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