Himachal Pradesh High Court
Maan Singh vs State Of H.P. &Ors on 16 June, 2025
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP Nos.9282, 9284, 9286, 9294,
9296, 9412, 9414 & 9416 of 2025
Date of decision: 16.06.2025
1. CWP No.9282 of 2025
Maan Singh. …Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
2. CWP No.9284 of 2025
Bhinder Ram. ...Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
3. CWP No.9286 of 2025
Joginder. ...Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
4. CWP No.9294 of 2025
Joginder Kumar. ...Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
5. CWP No.9296 of 2025
Gokaran. ...Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
6. CWP No.9412 of 2025
Balo Ram. ...Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes
-2-
7. CWP No.9414 of 2025
Kalyan Singh. …Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
8. CWP No.9416 of 2025
Subhash Chand. ...Petitioner.
Versus
State of H.P. &Ors. ...Respondents.
Coram:
Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? Yes.
For the petitioners : Mr. I.D. Bali, Senior Advocate
with Mr. Hitesh Bali and J.D.
Sharma, Advocates.
For the respondent : Mr. Y.P.S. Dhaulta, Additional
Advocate General.
Jyotsna Rewal Dua, Judge
Since, these writ petitions involve common
questions of law and facts, with the consent of learned
counsel for the parties these are taken up together for
adjudication. For sake of convenience, facts from CWP
No.9282 of 2025 are being referred to hereinafter.
2. Petitioner feels aggrieved against the order passed
by the Deputy Labour Commissioner, Himachal Pradesh on
27.04.2024 in declining to refer the dispute raised by the
petitioner for adjudication to the learned Labour Court-cum-
-3-
Industrial Tribunal, on the ground of same being stale,
belated and having faded away with time. Beside assailing
this order, petitioner seeks directions to the respondents to
condone/quash alleged artificial/fictional breaks given to
him from 1998 to 2005 and consequently, to regularize his
services w.e.f. 01.01.2004, on completion of 8 years of
regular service w.e.f. 1998.
From the pleadings in the writ petition as also the
representation preferred by the petitioner on 30.11.2021
(Annexure P-5) following facts emerge: –
2(i). Petitioner was engaged as Daily Wage Beldar by
the respondents-Irrigation & Public Health Department on
muster-roll basis. He was allowed to work for 18 days in a
month, w.e.f. 1998 till 2005, and muster-roll was accordingly
issued to him. According to the petitioner, he was willing to
work for the entire duration of month but was forcibly given
artificial/fictional breaks every month by the respondents.
For this reason, petitioner could not complete 240 days of
service w.e.f. 1998 to 2005.
2(ii). From the year 2006 onwards, the respondents
stopped giving fictional breaks and issued muster-roll to the
-4-petitioner for the entire month and allowed him to complete
240 days in each calendar year. In this manner, the
petitioner completed 8 years of continuous service and
accordingly, his services were regularized vide office order
dated 03.10.2013 (Annexure P-2). Petitioner, thereafter,
continued to serve with the respondents on regular basis.
2(iii). It was on 30.11.2021 that the petitioner
represented for the first time to the respondents by issuing a
demand notice that breaks given to him during the period
1999 to 2005 were artificial/fictional and illegal; This illegal
act of the respondent-Department wrongfully denied the
benefit of continuous service to the petitioner and amounts
to unfair labour practice. The respondent-Department was
called upon to reckon the period of petitioner’s entire daily
wage tenure from the year 1999 as continuous service for the
purpose of regularization of service and also towards
seniority and other consequential benefits.
2(iv). The dispute raised by the petitioner could not be
settled in the conciliation proceedings. The Deputy Labour
Commissioner, Himachal Pradesh passed the order on
27.04.2024 holding that petitioner had raised industrial
-5-
dispute after 16 years from the cause of action. The dispute
was stale and faded away with passage of time and therefore,
was non-existent. The dispute raised by the petitioner thus
was not referred for adjudication by the learned Labour
Court-cum-Industrial Tribunal.
2(v). In the aforesaid background, the petitioner has
preferred this writ petition seeking following substantive
reliefs:-
“i. the order passed by the Conciliation
Officer/Deputy Labour Commissioner H.P.
dated 27-04-2024, may be set aside &
quashed.
ii. the action of respondents giving artificial/
fictional breaks to the petitioner from 1998 to
2005 be set aside & quashed.
iii. that the service of the petitioner may be
counted for regularization from his initial
engagement from the year 1998 & the
petitioner regularized on 01-01-2004 on
completion of 8 years of regular service
pursuant to the regularization policy of the
Government with all consequential benefits.
iv. that the consequential benefits as released to
similarly situated persons Mohinder Kumar &
Tilak Raj released vide Annexure P-3 & P-4 be
also released to petitioner.”
3. Learned Senior Counsel for the petitioner
contended that in somewhat similar circumstances, the
respondents had passed an order on 28.05.2020 (Annexure
-6-
P-3), in case of one Sh. Mohinder Kumar, Beldar, whereby
fictional breaks in service from the date of Mohinder Kumar’s
initial engagement, i.e. from 1995 to April, 2006, were
condoned and his daily wage seniority was ordered to be
reckoned from the year 1995. Another order relied upon by
leaned Senior Counsel of even date, i.e. 28.05.2020
(Annexure P-4), was passed in case of one Sh. Tilak Raj,
Beldar, whereby fictional breaks in the service of said Sh.
Tilak Raj from the date of his initial engagement, i.e.
01.04.1998 till April 2006, were ordered to be condoned.
Reliance was also placed upon a decision rendered in
Tarlesh Bali and Ors. vs. State of Himachal Pradesh &
Ors.1, wherein considering the facts of the said case in
relation to the petitioners therein, the practice adopted by
the respondent-State allowing the petitioners (therein) to
work only for 18 days in a month was deprecated. The action
of the respondent-State giving artificial/fictional breaks was
quashed and set aside in case of the petitioners therein for
the purpose giving them seniority.
Learned Senior Counsel for the petitioner also
pressed into service the decision rendered in Rakesh Kumar
1
CWP(T) No.1129 of 2008 decided on 17.05.2010.
-7-
vs. State of H.P. & Ors.2, wherein respondents were
directed to consider the case of the petitioners (therein) for
conferment of work-charge status, as under:-
“6. The simple question is whether the delay
defeats justice? In analyzing the above issue, it has
to be borne in mind that the petitioners are only class-
IV workers (Beldars). The schemes announced by the
Government clearly provided that the department
concerned should consider the workmen concerned
for bringing them on the work-charged category. So,
there is an obligation cast on the department to
consider the cases of the daily waged workmen for
conferment of the work-charged status, being on a
work-charged establishment, on completion of the
required number of years in terms of the policy. At the
best, the petitioners can only be denied the interest
on the eligible benefits and not the benefits as such,
which accrued on them as per the policy and under
which policy, the department was bound to confer the
status, subject to the workmen satisfying the required
conditions.
7. In the above circumstances, these Writ
Petitions are disposed of directing the respondents to
consider the case(s) of the petitioners herein for
conferment of work-charged status, subject to their
eligibility in terms of the policy dated 3.4.2000 and as
explained in 6.5.2000 policy, as extracted above.
Needful in this regard shall be done within a period of
three months from the date of production of the copy
of this judgment by the respective petitioners.
Needless to say that the question of conferment of
work-charged status does not arise in case the
establishment ceases to be a work charged
establishment and hence, the conferment of the
status will not arise after the abolition of the
workcharged status of the establishment.”
Learned Senior Counsel submitted that in view of
above decisions, the fictional breaks given in service to the
petitioner from 1998-2005 deserve to be condoned and
2
CWP No.2735 of 2010 decided along with connected matters on 28.07.2010.
-8-
petitioner’s service are required to be regularized with effect
from 2004, i.e. on completion of 8 years of continuous
service as a daily wager by counting his seniority from the
year 1998.
4. Heard learned Senior Counsel for the petitioner,
learned Additional Advocate General for the respondents and
considered the case file.
4(i). Reliance placed by the learned Senior Counsel
upon two office orders dated 28.05.2020 (Annexure P-3 & P-
4) will not be beneficial to the petitioner in the facts of the
instant case. Admittedly, the aforesaid office orders were
issued pursuant to and in compliance with the awards
passed by learned Labour Court-cum-Industrial Tribunal in
respective cases. Petitioner in the instant case had not raised
any industrial dispute at the relevant time for condoning the
alleged fictional breaks given to him from 1998 to 2005. The
petitioner, therefore, cannot seek parity with the two
workmen in whose cases office orders were issued on
28.05.2020 based upon the separate awards passed by the
learned Labour Court-cum-Industrial Tribunal.
-9-
4(ii). The decision in Tarlesh Bali1 was rendered on
17.05.2010. It is not the case of the petitioner that he was
unaware of this decision. The petitioner’s services were
regularized after the decision in Tarlesh Bali1. In fact,
petitioner’s services were regularized under office order
issued on 03.10.2013, i.e. three years after the decision in
Tarlesh Bali1. Under this office order, petitioner’s seniority
was counted from 2006, i.e. when he completed 240 days of
continuous service in the calendar year. The petitioner
accepted the office order, whereby his services were
regularized w.e.f. 03.10.2013. In case, he was aggrieved by
the date from which his services were regularized, it was for
him to raise the issue at an appropriate stage, which he did
not. Not only did the petitioner accept the regularization
order, but he also continued to discharge his duties
thereafter for eight long years. It was only on 30.11.2021
that he raised an industrial dispute for the first time, alleging
that he had been illegally given fictional/artificial breaks
every month from the year 1998 to 2005. In Jai Singh vs.
State of H.P. & Ors.3, the effect of delay in raising the
demand and making reference of the industrial dispute to
3
CWP No.2190 of 2020 decided by Full Bench along with connected matters on 30.03.2022.
-10-
the Labour Court/Industrial Tribunal under Section 10(1) of
the Act was culled out as under:-
“28. Following principles of law can, therefore be culled
out from series of the precedents discussed above, as to the
effect of delay in demanding /making reference of the
industrial dispute to the Labour Court/Industrial Tribunal
under Section 10(1) of the Act:-
i) That the function of the appropriate Government while
dealing with question of making reference of industrial
dispute under Section 10(1) of the Act, is an administrative
function and not a judicial or quasi judicial function.
ii) That the Government before taking a decision
on the question of making reference of the industrial
dispute has to form a definite opinion whether or not
such dispute exits or is apprehended.
iii) That whether or not the industrial dispute
exists or is apprehended in the meaning of Section
10(1) of the Act can be decided by the appropriate
Government alone and not by any other authority
including by this Court.
iv) That the appropriate Government in
discharging the administrative function of taking a
decision to make or refuse to make, reference of the
industrial dispute under Section 10(1) of the Act, has
to apply its mind on relevant considerations and has
not to act mechanically as a post office.
v) That while forming an opinion as to whether the
industrial dispute exists or is apprehended, the appropriate
Government is not entitled to adjudicate the dispute itself on
merits.
vi) That the delay by itself does not denude the
appropriate Government of its power to examine
advisability of making reference of the industrial
dispute but the delay would certainly be relevant for
deciding the basic question whether or not the
industrial dispute “exists” which also includes the
decision to find out whether on account of delay the
dispute has ceased to exist or has ceased to be alive
or has become stale or has faded away.
vii) That whether or not a dispute is alive or has
become stale or non-existent, would always depend on
-11-the facts of each case and no rule of universal
application can be laid down for the same.
viii) That even if Section 10(1) of the Act empowers the
appropriate Government to form an opinion “at any time” on
the question whether any “industrial dispute” “exists or is
apprehended”, and there is no time limit prescribed for
taking such a decision, yet such power has to be exercised
by the appropriate Government within a reasonable time.
ix) That the period for making reference of industrial
dispute is co-extensive with the existence of dispute because
the factum of the “existence” or “apprehension of the
dispute” is conditioned by the effect of the delay on the
liveliness of the dispute
x) That the appropriate Government in arriving at
the decision to make a reference of industrial dispute
or otherwise, in the context of delay, may examine
whether the workman or the Union has been agitating
the matter before the appropriate fora so as to keep
the dispute alive, which however, does not necessarily
mean that in a case where such action has not been
initiated, the dispute has ceased to exist.
xi) That the appropriate Government can, as per Section
10(1) of the Act, take a decision on the question of making
reference “at any time”, thus implying that there is no
limitation in taking such decision and the provisions of
Article 137 of the Schedule to Limitation Act, 1963 are not
applicable to such proceedings.
xii) That the appropriate Government while taking
a decision on the question of making reference, need
not provide an elaborate opportunity of hearing to the
workman but it is under an obligation to consider his
explanation for delay in making the demand.
xiii) That in cases where the appropriate Government
while examining the question of making a reference of
industrial dispute arrives at a decision that the question that
on account of delay the dispute has ceased to exist or alive,
would require elaborate examination of the evidence, it may
while making a reference of the industrial dispute,
additionally formulate question on this aspect to be decided
as preliminary issue while simultaneously also making a
reference on the industrial dispute to be decided as
secondary issue.
xiv) That even in a case where reference has been made
to the Industrial Court after prolonged delay, such Court
-12-would be entitled to mould the relief by declining whole or
part of the back wages.
xv) That even when a reference is made by appropriate
Government in a case after huge and enormous unexplained
delay, the industrial Court would be entitled to return the
reference since such Court judiciously exercises its wide
jurisdiction under Section 11-A of the Industrial Disputes Act
and is under obligation to consider whether in such like
situation any relief at all could be granted to the workman.”
In terms of above decision, the appropriate
Government in discharging the administrative function of
taking a decision to make or refuse to make, reference of the
industrial dispute under Section 10(1) of the Act, is not to act
mechanically as a post office but has to apply its
independent mind on relevant considerations. The
Government before taking a decision on the question of
making reference of the industrial dispute has to form a
definite opinion whether or not such dispute exists. The
delay is a relevant factor for deciding the basic question
whether or not the industrial dispute exists or has ceased to
be alive or become stale or faded away. Decision of this
question would always depend upon the facts of each case.
The appropriate Government while taking a decision on the
question of making reference though need not provide an
elaborate opportunity of hearing to the workman but it is
-13-
under an obligation to consider his explanation for delay in
making the demand.
In the instant case, petitioner’s case is that
fictional breaks were given to him during the years 1998 to
2005. But the fact is that the petitioner never felt aggrieved
against giving of alleged fictional breaks to him. He was not
the petitioner in Tarlesh Bali1, which was instituted in close
proximity of the cause of action. The petition was decided on
17.05.2010. Even at that stage, he did not raise any dispute
for applying the aforesaid decision to him. In fact, his
services were regularized three years later, i.e. on
03.10.2013, by taking into consideration the continuous
service rendered by him w.e.f. 2006 onwards and ignoring
his previous service with breaks. He did not raise any
grievance at that stage as well and continued to work on the
basis of his having been regularized w.e.f. 03.10.2013 after
taking his continuous service with 240 days in each calendar
year w.e.f. 2006 onwards. It was only on 30.11.2021 that he
raised the industrial dispute concerning fictional breaks
allegedly given to him during the years 1998-2005. In the
given facts, the impugned order justly declines to refer the
-14-
dispute raised by the petitioner on 30.11.2021 for
adjudication to the learned Labour Court-cum-Industrial
Tribunal as the dispute raised by the petitioner had become
stale, belated and was non-existent in view of law discussed
in Jai Singh3. Even in this writ petition, no justification has
been accorded as to why the petitioner could not raise the
industrial dispute or could not seek the relief, which he is
now praying in this writ petition, at the relevant time.
Petitioner now aged 58 years has no explanation to offer for
the delay. The petitioner accepted regularization of his
services w.e.f. the year 2013 for eight long years.
Bichitrananda Behera Versus State of Orissa and
others4 holds that delay and laches are vital in service
matters and can be seen as acquiescence. Belated service
related claim is to be rejected on the ground of delay and
laches. Laches can be based upon equitable considerations,
but laches unlike acquiescence imports even simple
passivity. Acquiescence implies active assent and is based
upon the rule of estoppel in pais. Even indirect acquiescence
implies almost active consent, which is not to be inferred by
mere silence or inaction which is involved in laches.
4
2023 SCC OnLine SC 1307
-15-
Acquiescence in this manner is quite distinct from delay.
Acquiescence virtually destroys the right of the person.
Hon’ble Apex Court observed that the claimant therein had
delayed pursuing his claim for over 12 years despite being
aware of the appointment of another person to the same post
of Physical Education Trainer (PET). This prolonged inaction
was held to amount to acquiescence, which effectively bars
the claim because it implies consent through silence or
failure to act. Hon’ble Apex Court explained that while laches
refers to an unreasonable delay without active consent, both
delay and laches serve the important purpose of preventing
stale claims that disrupt settled rights and administrative
decisions. In service matters, these doctrines were held to
play crucial roles as they protect the stability and finality of
administrative decisions. Relevant portion of the judgment
reads as under:-
“21. Profitably, we may reproduce relevant passages from
certain decisions of this Court:
“(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:
“To summarise, normally, a belated service related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation
(where remedy is sought by an application to the
Administrative Tribunal). One of the exceptions to the said
rule is cases relating to a continuing wrong. Where a service
related claim is based on a continuing wrong, relief can be
granted even if there is a long delay in seeking remedy, with
-16-reference to the date on which the continuing wrong
commenced, if such continuing wrong creates a continuing
source of injury. But there is an exception to the exception. If
the grievance is in respect of any order or administrative
decision which related to or affected several others also, and
if the reopening of the issue would affect the settled rights of
third parties, then the claim will not be entertained. For
example, if the issue relates to payment or refixation of pay
or pension, relief may be granted in spite of delay as it does
not affect the rights of third parties. But if the claim involved
issues relating to seniority or promotion, etc., affecting
others, delay would render the claim stale and doctrine of
laches/limitation will be applied. Insofar as the
consequential relief of recovery of arrears for a past period is
concerned, the principles relating to recurring/successive
wrongs will apply. As a consequence, the High Courts will
restrict the consequential relief relating to arrears normally
to a period of three years prior to the date of filing of the writ
petition.”
(Emphasis supplied)
(B)……………..
21-23. ……………..
Acquiescence
24. We have already discussed the relationship between
acquiescence on the one hand and delay and laches on the
other.
25. Acquiescence would mean a tacit or passive
acceptance. It is implied and reluctant consent to an act. In
other words, such an action would qualify a passive assent.
Thus, when acquiescence takes place, it presupposes
knowledge against a particular act. From the knowledge
comes passive acceptance, therefore instead of taking any
action against any alleged refusal to perform the original
contract, despite adequate knowledge of its terms, and
instead being allowed to continue by consciously ignoring it
and thereafter proceeding further, acquiescence does take
place. As a consequence, it reintroduces a new implied
agreement between the parties. Once such a situation
arises, it is not open to the party that acquiesced itself to
insist upon the compliance of the original terms. Hence,
what is essential, is the conduct of the parties. We only
dealt with the distinction involving a mere acquiescence.
When acquiescence is followed by delay, it may become
laches. Here again, we are inclined to hold that the concept
of acquiescence is to be seen on a case-to-case basis.”
(C) Chairman, State Bank of India v M J James, (2022) 2
SCC 301:
-17-
36. What is a reasonable time is not to be put in a
straitjacket formula or judicially codified in the form of days,
etc. as it depends upon the facts and circumstances of each
case. A right not exercised for a long time is non- existent.
Doctrine of delay and laches as well as acquiescence are
applied to non-suit the litigants who approach the
court/appellate authorities belatedly without any justifiable
explanation for bringing action after unreasonable delay. In
the present case, challenge to the order of dismissal from
service by way of appeal was after four years and five
months, which is certainly highly belated and beyond
justifiable time. Without satisfactory explanation justifying
the delay, it is difficult to hold that the appeal was preferred
within a reasonable time. Pertinently, the challenge was
primarily on the ground that the respondent was not
allowed to be represented by a representative of his choice.
The respondent knew that even if he were to succeed on this
ground, as has happened in the writ proceedings, fresh
inquiry would not be prohibited as finality is not attached
unless there is a legal or statutory bar, an aspect which has
been also noticed in the impugned judgment. This is
highlighted to show the prejudice caused to the appellants
by the delayed challenge. We would, subsequently, examine
the question of acquiescence and its judicial effect in the
context of the present case.
xxx
38. In Ram Chand v. Union of India [Ram Chand v. Union
of India, (1994) 1 SCC 44] and State of U.P. v. Manohar
[State of U.P. v. Manohar, (2005) 2 SCC 126] this Court
observed that if the statutory authority has not performed its
duty within a reasonable time, it cannot justify the same by
taking the plea that the person who has been deprived of his
rights has not approached the appropriate forum for relief. If
a statutory authority does not pass any orders and thereby
fails to comply with the statutory mandate within
reasonable time, they normally should not be permitted to
take the defence of laches and delay. If at all, in such cases,
the delay furnishes a cause of action, which in some cases
as elucidated in Union of India v. Tarsem Singh [Union of
India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC
(L&S) 765] may be continuing cause of action.
The State being a virtuous litigant should meet the genuine
claims and not deny them for want of action on their part.
However, this general principle would not apply when, on
consideration of the facts, the court concludes that the
respondent had abandoned his rights, which may be either
express or implied from his conduct. Abandonment implies
intentional act to acknowledge, as has been held in para 6
of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P.
[Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P.,
-18-
(1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this
principle of acquiescence to the precept of delay and laches,
this Court in U.P. Jal Nigam v. Jaswant Singh [U.P. Jal
Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC
(L&S) 500] after referring to several judgments, has accepted
the following elucidation in Halsbury’s Laws of England :
(Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh,
(2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-
71, paras 1213).
“12. The statement of law has also been summarised in
Halsbury’s Laws of England, Para 911, p. 395 as follows:
‘In determining whether there has been such delay as to
amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant’s part; and
(ii) any change of position that has occurred on the
defendant’s part.
Acquiescence in this sense does not mean standing by while
the violation of a right is in progress, but assent after the
violation has been completed and the claimant has become
aware of it. It is unjust to give the claimant a remedy where,
by his conduct, he has done that which might fairly be
regarded as equivalent to a waiver of it; or where by his
conduct and neglect, though not waiving the remedy, he has
put the other party in a position in which it would not be
reasonable to place him if the remedy were afterwards to be
asserted. In such cases lapse of time and delay are most
material. Upon these considerations rests the doctrine of
laches.’
13. In view of the statement of law as summarised above,
the respondents are guilty since the respondents have
acquiesced in accepting the retirement and did not challenge
the same in time. If they would have been vigilant enough,
they could have filed writ petitions as others did in the
matter. Therefore, whenever it appears that the claimants
lost time or whiled it away and did not rise to the occasion
in time for filing the writ petitions, then in such cases, the
court should be very slow in granting the relief to the
incumbent. Secondly, it has also to be taken into
consideration the question of acquiescence or waiver on the
part of the incumbent whether other parties are going to be
prejudiced if the relief is granted. In the present case, if the
respondents would have challenged their retirement being
violative of the provisions of the Act, perhaps the Nigam
could have taken appropriate steps to raise funds so as to
meet the liability but by not asserting their rights the
respondents have allowed time to pass and after a lapse of
couple of years, they have filed writ petitions claiming the
benefit for two years. That will definitely require the Nigam
-19-
to raise funds which is going to have serious financial
repercussions on the financial management of the Nigam.
Why should the court come to the rescue of such persons
when they themselves are guilty of waiver and
acquiescence?”
39. Before proceeding further, it is important to clarify
distinction between “acquiescence” and “delay and laches”.
Doctrine of acquiescence is an equitable doctrine which
applies when a party having a right stands by and sees
another dealing in a manner inconsistent with that right,
while the act is in progress and after violation is completed,
which conduct reflects his assent or accord. He cannot
afterwards complain. [See Prabhakar v. Sericulture Deptt.,
(2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see
Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925
SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the
term acquiescence means silent assent, tacit consent,
concurrence, or acceptance, [See Vidyavathi Kapoor Trust v.
CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which
denotes conduct that is evidence of an intention of a party to
abandon an equitable right and also to denote conduct from
which another party will be justified in inferring such an
intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine
HP 5 : AIR 1964 HP 34] Acquiescence can be either direct
with full knowledge and express approbation, or indirect
where a person having the right to set aside the action
stands by and sees another dealing in a manner
inconsistent with that right and in spite of the infringement
takes no action mirroring acceptance. [See “Introduction”,
U.N. Mitra, Tagore Law Lectures — Law of Limitation and
Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence
will not apply if lapse of time is of no importance or
consequence.
40. Laches unlike limitation is flexible. However, both
limitation and laches destroy the remedy but not the right.
Laches like acquiescence is based upon equitable
considerations, but laches unlike acquiescence imports even
simple passivity. On the other hand, acquiescence implies
active assent and is based upon the rule of estoppel in pais.
As a form of estoppel, it bars a party afterwards from
complaining of the violation of the right. Even indirect
acquiescence implies almost active consent, which is not to
be inferred by mere silence or inaction which is involved in
laches. Acquiescence in this manner is quite distinct from
delay. Acquiescence virtually destroys the right of the
person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC
OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid
legal position, inactive acquiescence on the part of the
respondent can be inferred till the filing of the appeal, and
not for the period post filing of the appeal. Nevertheless, this
-20-
acquiescence being in the nature of estoppel bars the
respondent from claiming violation of the right of fair
representation.”
In Marinmoy Maity versus Chanda Koley &
Ors.5, the Hon’ble Apex Court held that an applicant who
approaches the Court belatedly or in other words sleeps over
his rights for a considerable period of time, wakes up from
deep slumber ought not to be granted the extraordinary relief
by the writ Courts. 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. Relevant portion from
the decision is as under: –
“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 while5
AIR 2024 SC 2717
-21-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
-22-discretionary jurisdiction under Articles 32, 226,
227 or 136 of the Constitution, this Court takes into
account certain factors and one of such
considerations is delay and laches on the part of
the applicant in approaching a writ court. It is well
settled that power to issue a writ is discretionary.
One of the grounds for refusing reliefs under Article
32 or 226 of the Constitution is that the petitioner is
guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction
of a writ court, he should come to the Court at the
earliest reasonably possible opportunity. Inordinate
delay in making the motion for a writ will indeed be
a good ground for refusing to exercise such
discretionary jurisdiction. The underlying object of
this principle is not to encourage agitation of stale
claims and exhume matters which have already
been disposed of or settled or where the rights of
third parties have accrued in the meantime (vide
State of M.P. v. Bhailal Bhai [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 also when a person can approach a court. The
question is one of discretion and has to be decided
on the basis of facts before the court depending on
and varying from case to case. It will depend upon
what the breach of fundamental right and the
remedy claimed are and when and how the delay
arose.” ”
The ratio of above decisions apply to the facts of
the instant case. In view of above, the impugned orders
cannot be said to be suffering from any error. The claim of
the petitioners at this belated stage suffers from unexplained
delay, laches and acquiescence. Hence, these writ petitions
-23-fail and are dismissed. Pending miscellaneous application(s),
if any, shall also stand disposed of
Jyotsna Rewal Dua
16th June, 2025 Judge
(Pardeep)