CHAIRMAN/MANAGING DIRECTOR, U.P. POWER CORPORATION LTD. & OTHERS versus RAM GOPAL

[2020] 3 S.C.R.

ACHAIRMAN/MANAGING DIRECTOR, U.P. POWERCORPORATION LTD. & OTHERS

RAM GOPAL

B(Civil Appeal No. 852 of 2020 etc.)

JANUARY 30, 2020

[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]

Service Law:

Termination of service – On account of finding irregularitiesin the selection process of the employees including that of therespondent – One of the terminated candidates was granted reliefof continuation of his service – Thereafter respondent filed writpetition challenging termination of his service – Writ Petition wasDallowed by Single Judge of High Court holding that the respondent’scase was squarely covered by the case of the other employee whowas granted relief by the Court – Special appeal by the employerwas dismissed by the Division Bench of the High Court – Appeal toSupreme Court – Held: Termination order cannot be said to be non-reasoned – Termination order of the respondent could not haveEbeen set aside drawing parity from the case of another employee,as the case of another employee was decided on equitable grounds– Equity acts in personam and not in rem – Equity.

Limitation:

FLimitation in filing writ petitions – Held: Limitation does notstrictly apply to proceedings u/Ars. 32 or 226 of the Constitution –However, such rights cannot be enforced after an unreasonablelapse of time – Writ Courts ought to be reluctant in exercising theirdiscretionary jurisdiction to protect those who have slept over wrongsand allowed illegalities to foster – However, such principles do notGapply to the judgments delivered in-rem – In the present case, thejudgment granting relief to the other employee in setting aside histermination order, does not have the ingredient of judgment in-rem, hence cannot come to respondent’s rescue.

Allowing the appeals, the Court

HELD: 1. The impugned order of the High Court is legallyuntenable. The Division Bench’s finding that “no reason has beenassigned in the order of cancellation of appointment of therespondent”, is vividly erroneous. Termination of anothercandidate was held legal only on account of pending litigation andinterim directions of courts that he had spent 17 years inemployment of UPPCL-employer. Paying heed to these equitableconsiderations, and not as matter of any legal right, the HighCourt had urged the employer to sympathetically consider thecase of that employee for retention in employment. Thisconclusion of the High Court has undoubtedly attained finality.Whereas that employee had remained in service for overseventeen years (except brief period between August toNovember in 1978) and had fought his case tooth and nail, therespondent has not been in the employment of UPPCL since 1978.The fact-situation in that case was unique and altogether differentfrom that of the respondent and there arises no reason to seekor grant parity. Even otherwise, it is settled canon of commonlaw that equity acts in personam and not in rem. Hence, therecould be no extension of parity between them. [Paras 10, 11, 12and 13][519-D-F; 520-A-E]

2.1 Services of the respondent were terminated withinmonths of his appointment, in 1978. Statedly, the respondent madea representation and served UPPCL with legal notice in 1982,however such feeble effort does little to fill the gap between whenthe cause of action arose and he chose to seek its redressal (in1990). The prolonged delay of many years ought not to have beenoverlooked or condoned. [Para 14][520-F-G]

2.2 Whilst it is true that limitation does not strictly apply toproceedings under Articles 32 or 226 of the Constitution of India,nevertheless, such rights cannot be enforced after anunreasonable lapse of time. Consideration of unexplained delaysand inordinate laches would always be relevant in writ actions,and writ courts naturally ought to be reluctant in exercising theirdiscretionary jurisdiction to protect those who have slept overwrongs and allowed illegalities to fester. Fence-sitters cannot be

Aallowed to barge into courts and cry for their rights at theirconvenience, and vigilant citizens ought not to be treated alikewith mere opportunists. On multiple occasions, it has beenrestated that there are implicit limitations of time within whichwrit remedies can be enforced. These principles may not,however, apply to judgments which are delivered in-rem. TheBState and its instrumentalities are expected in such category ofcases tothemselves extend the benefit of judicialpronouncement to all similarly placed employees without forcingeach person to individually knock the doors of courts. The orderpassed by the High Court for retention of another employee inCservice, does not possess any ingredient of Judgment in-rem.The above cited exception, therefore, does not come to therespondent’s rescue. It has neither been pleaded nor is it apparentfrom the material on record that the respondent was unable toapproach the court-of-law in time, on account of any social orfinancial disability. Had such been the case, he ought to haveDavailed free legal aid and should have ventilated his grievancesin timely manner. [Paras 16, 18 and 19][521-E-G; 522-E; 523-G-H; 524-A]

State of Uttar Pradesh v. Arvind Kumar Srivastava(2015) 1 SCC 347 : [2014] 12 SCR 193 – relied on.EP. S. Sadasivaswamy v. State of Tamil Nadu (1975) 1SCC 152 : [1975] 2 SCR 356; SS Balu v. State of Kerala(2009) 2 SCC 479 : [2009] 1 SCR 196; Vijay KumarKaul v. Union of India (2012) 7 SCC 610 : [2012] 6SCR 128 – referred to.F

Case Law Reference

From the Judgment and Order dated 29.04.2016 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Special AppealHNo. 643 of 2007.

With

Crl. A. No. 204/2020.

Pradeep Misra, Adv. for the Appellants.Farrukh Rasheed and Asim Chandra, Advs. for the Respondent.

JUDGMENT

The following Judgment of the Court was delivered :

1. Leave granted.

2. Uttar Pradesh Power Corp. Ltd. (hereinafter, “UPPCL”) haspreferred this appeal, assailing an order dated 29.04.2016 passed by aDivision Bench of the High Court of Judicature at Allahabad (LucknowBench) which in turn upheld the order dated 05.04.2016 passed by alearned Single Judge whereby Ram Gopal (Respondent)’s writ petitionfor setting aside his termination order and directing his consequent re-instatement, was allowed.

FACTUAL BACKGROUND

3. UPPCL conducted selections for certain Class IV positions ofJunior Meter Tester & Repairer, Mate and Meter Coolie/Chaukidar anddeclared results on 31.08.1978 through an Office Memorandum. TheRespondent emerged as one of the successful candidates for beingappointed as Meter Cooli/Chaukidar. Owing to subsequent discovery ofcertain irregularities in the selection process, UPPCL cancelled theseselections on 03.11.1978 and consequently terminated services of allappointees on 07.11.1978.

4. Shyam Behari Lal, another successful candidate whoseservices too had been terminated, promptly approached the jurisdictionalHigh Court which allowed his writ petition on 26.10.1989 observing thatno reasons had been assigned for the termination. UPPCL unsuccessfullyfiled an intra-court appeal, and thereafter approached this Court by wayof Civil Appeal No. 7123 of 1993 (U.P. State Electricity Board andOthers v. Shyam Behari Lal). The said appeal was allowed vide orderdated 22.11.1993 with an observation that the reason for terminationwas ‘writ large’ on the order itself, namely, “cancellation of result ofselection of operating staff”, and the matter was accordingly remittedto the High Court for disposal on merits.

5. Thereafter, Division Bench of the High Court consideredShyam Behari Lal’s case and held that though the writ petition was

DEF

Aliable to be dismissed on merits, however, considering the peculiarcircumstances wherein Shyam Behari Lal had already served the UPPCLfor 17 years, rendering him jobless might be too harsh consequence.The relevant operative part of the order dated 30.05.1997 reads asfollows:

B“In view of what has been discussed above, is true that thepetitioner is liable to be dismissed, but in the peculiarcircumstances of the case and in view of the fact that thepetitioners are continuing in service for last seventeen years,it would be too harsh to render him jobless at this stage. Wewould, therefore, only provide that the opposite parties mayCconsider his continuance in service and take suitabledecision as may be thought appropriate in the facts andcircumstances of the case expeditiously.”

(emphasis supplied)

D6. After the initial round of litigation in which Shyam Behari Lalhad obtained relief from the High Court in 1989, the present Respondentalso filed WP No. 7897 of 1990 in July, 1990, impugning the order dated07.11.1978 terminating his services. learned Single Judge of the HighCourt of Judicature at Allahabad summarily allowed the Respondent’swrit petition on 05.04.2007 on the premise that the matter was “squarelyEcovered” by the decision of the High Court dated 26.10.1989 in ShyamBehari Lal’s case.

7. The aggrieved UPPCL preferred Special Appeal No. 643 of2007 which was dismissed by Division Bench vide the impugned orderdated 29.04.2016. Although the Court noted that the order of 1989 reliedFupon by the learned Single Judge had been set-aside by this Court andduring fresh consideration of the matter co-ordinate Bench had heldShyam Behari Lal’s case being devoid of any merit; yet it laid emphasison the equitable considerations which were pressed into aid in ShyamBehari Lal’s case for his resultant continuation in service. The DivisionGBench, thus, dismissed UPPCL’s appeal and held as follows:

“The case of the respondent is similarly situated as hisappointment pertains to the same selection and no reason hasbeen assigned in the order of cancellation of appointment ofthe respondent. Therefore, learned Single Judge has rightlyextended the parity of the aforesaid judgment and order toHthe respondent while allowing the Writ Petition.”

CONTENTIONS OF PARTIES

8. Vehemently refuting the Respondent’s claim of illegaltermination, UPPCL has preferred this Civil Appeal both against theDivision Bench’s order dated 29.04.2016, as well as the contemptproceedings initiated before the High Court by the Respondent. UPPCLhas painstakingly urged that there is no correlation in law or any similarityin facts between the case of Shyam Behari Lal and the present case ofRam Gopal.

9. On the other hand, counsel for the Respondent defends thejudgment of the Division Bench, maintaining that both Shyam Behari Laland Ram Gopal were recruited through the same office memorandum,and their services were terminated through the same order. It was urgedthat what holds true for one candidate must necessarily also hold truefor the other; and it would be iniquitous and unequal to give rise to asituation where similarly placed persons end up in vastly differentsituations.

ANALYSIS

10. Having heard learned counsel for the parties at considerablelength, we find that the impugned order of the High Court is legallyuntenable and cannot be sustained for at least three glaring reasons.

i)Erroneous conclusion of termination order being non-speaking

11. First, the Division Bench’s finding that “no reason has beenassigned in the order of cancellation of appointment of therespondent”, is vividly erroneous. This Court had earlier vide orderdated 22.11.1993 passed in Civil Appeal No. 7123 of 1993 overruledthe High Court’s finding of non-reasoned termination in Shyam BehariLal’s case and had held that the termination order was in fact speakingorder, with the reason for termination being writ large and clearly given.The High Court’s findings thus undoubtedly fall foul of the observationsmade by this Court and the impugned order hence ought to be set-asideon this count alone.

ii) Lack of similarity between Shyam Behari Lal and RamGopal

12. Second, Quite palpably, the High Court has erred in concludingthat the Respondent’s claim fell squarely within the four corners of its

Aprevious decision in Shyam Behari Lal’s case. The relied-upon judgmentdated 30.05.1997 determined unequivocally that there was no merit inthe writ petition and that Shyam Behari Lal’s claim was “liable to bedismissed”. It was only on account of pending litigation and interimdirections of courts that Shyam Behari Lal had spent 17 years inemployment of UPPCL. Paying heed to these equitable considerations,Band not as matter of any legal right, the High Court urged the employerto sympathetically consider his case for retention in employment. Thisconclusion of the High Court was not appealed by any party and hasundoubtedly attained finality. Hence, it is clear in law that Shyam BehariLal’s termination was legal, and that he had no right of continuation inCservice, let alone reinstatement as sought in the present case. The onlyquestion which thus survives is whether the Respondent, Ram Gopal,could seek parity?

13. At the outset, it is apparent that Shyam Behari Lal and RamGopal share little similarity. Whereas the former had remained in serviceDfor over seventeen years (except brief period between August toNovember in 1978) and had fought his case tooth and nail, the Respondenthas not been in the employment of UPPCL since 1978. The fact-situationin Shyam Behari Lal’s case was unique and altogether different fromthat of Ram Gopal, and there arises no reason to seek or grant parity.Even otherwise, it is settled canon of common law that equity acts inEpersonam and not in rem. Hence, there could be no extension of paritybetween the case of Shyam Behari Lal and Ram Gopal (Respondent).

iii) Inordinate delay in filing writ petition

14. Finally, the prolonged delay of many years ought not to haveFbeen overlooked or condoned. Services of the Respondent wereterminated within months of his appointment, in 1978. Statedly, theRespondent made representation and served UPPCL with legal noticein 1982, however such feeble effort does little to fill the gap betweenwhen the cause of action arose and he chose to seek its redressal(in1990).G

15. Seen from different perspective also, it is clear that theRespondent has shown little concern to the settled legal tenets. Even acivil suit challenging termination of services, if filed by the Respondent,would have undoubtedly been barred by limitation in 1990. In similarsituation where the appellant belatedly challenged the promotion of hisH

junior(s), this Court in P.S. Sadasivaswamy v. State of Tamil Nadu[1],held as follows:

“2. … if the appellant was aggrieved by it he should haveapproached the Court even in the year 1957, after the tworepresentations made by him had failed to produce any result.One cannot sleep over the matter and come to the Courtquestioning that relaxation in the year 1971. … In effect hewants to unscramble scrambled egg. It is very difficult forthe Government to consider whether any relaxation of therules should have been made in favour of the appellant inthe year 1957. The conditions that were prevalent in 1957,cannot be reproduced now. …It is not that there is any periodof limitation for the Courts to exercise their powers underArticle 226 nor is it that there can never be case where theCourts cannot interfere in matter after the passage of acertain length of time. But it would be sound and wiseexercise of discretion for the Courts to refuse to exercise theirextraordinary powers under Article 226 in the case of personswho do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Courtto put forward stale claims and try to unsettle settledmatters…...”

16. Whilst it is true that limitation does not strictly apply toproceedings under Articles 32 or 226 of the Constitution of India,nevertheless, such rights cannot be enforced after an unreasonable lapseof time. Consideration of unexplained delays and inordinate laches wouldalways be relevant in writ actions, and writ courts naturally ought to bereluctant in exercising their discretionary jurisdiction to protect thosewho have slept over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights attheir convenience, and vigilant citizens ought not to be treated alike withmere opportunists. On multiple occasions, it has been restated that thereare implicit limitations of time within which writ remedies can be enforced.In SS Balu v. State of Kerala[2], this Court observed thus:

“17. It is also well-settled principle of law that “delay defeatsequity”. …It is now trite law that where the writ petitioner

1 (1975) 1 SCC 152.

2 (2009) 2 SCC 479

Aapproaches the High Court after long delay, reliefs prayedfor may be denied to them on the ground of delay and lachesirrespective of the fact that they are similarly situated to theother candidates who obtain the benefit of the judgment.”

(emphasis supplied)

17. Similarly, in Vijay Kumar Kaul v. Union of India[3] this Courtwhile considering the claim of candidates who, despite being higher inmerit, exercised their right to parity much after those who were thoughlower in merit but were diligently agitating their rights, this Court observedthat:C

“27. …It becomes an obligation to take into considerationthe balance of justice or injustice in entertaining the petitionor declining it on the ground of delay and laches. It is matterof great significance that at one point of time equity thatexisted in favour of one melts into total insignificance andDpaves the path of extinction with the passage of time.”

18. We may hasten to add that these principles may not, however,apply to judgments which are delivered in-rem. The State and itsinstrumentalities are expected In such category of cases to themselvesextend the benefit of judicial pronouncement to all similarly placedEemployees without forcing each person to individually knock the doorsof courts. This distinction between operation of delay and laches tojudgments delivered in-rem and in personam, is lucidly captured in Stateof Uttar Pradesh v. Arvind Kumar Srivastava[4], laying down that:“22.1. The normal rule is that when particular set ofFemployees is given relief by the court, all other identicallysituated persons need to be treated alike by extending thatbenefit. Not doing so would amount to discrimination andwould be violative of Article 14 of the Constitution of India.This principle needs to be applied in service matters moreemphatically as the service jurisprudence evolved by thisGCourt from time to time postulates that all similarly situatedpersons should be treated similarly. Therefore, the normal rulewould be that merely because other similarly situated personsdid not approach the Court earlier, they are not to be treateddifferently.

H3 (2012) 7 SCC 6104 (2015) 1 SCC 347

22.2. However, this principle is subject to well-recognisedexceptions in the form of laches and delays as well asacquiescence. Those persons who did not challenge thewrongful action in their cases and acquiesced into the sameand woke up after long delay only because of the reason thattheir counterparts who had approached the court earlier intime succeeded in their efforts, then such employees cannotclaim that the benefit of the judgment rendered in the case ofsimilarly situated persons be extended to them. They wouldbe treated as fence-sitters and laches and delays, and/or theacquiescence, would be valid ground to dismiss their claim.

22.3. However, this exception may not apply in those caseswhere the judgment pronounced by the court was judgmentin rem with intention to give benefit to all similarly situatedpersons, whether they approached the court or not. With sucha pronouncement the obligation is cast upon the authoritiesto itself extend the benefit thereof to all similarly situatedpersons.Such situation can occur when the subject-matterof the decision touches upon the policy matters, like schemeof regularisation and the like (see K.C. Sharma v. Union ofIndia [K.C. Sharma v. Union of India, (1997) 6 SCC 721 :1998 SCC (L&S) 226] ). On the other hand, if the judgmentof the court was in personam holding that benefit of the saidjudgment shall accrue to the parties before the court andsuch an intention is stated expressly in the judgment or it canbe impliedly found out from the tenor and language of thejudgment, those who want to get the benefit of the saidjudgment extended to them shall have to satisfy that theirpetition does not suffer from either laches and delays oracquiescence.” (Emphasis applied)

19. The order passed by the High Court for retention of ShyamBehari Lal in service, does not possess any ingredient of Judgment in-rem. The above cited exception, therefore, does not come to theRespondent’s rescue. It is also pertinent to mention that neither has itbeen pleaded nor is it apparent from the material on record that theRespondent was unable to approach the court-of-law in time on accountof any social or financial disability. Had such been the case, he ought tohave availed free legal aid and should have ventilated his grievances in

Atimely manner. Instead, he seems to be under the assumption that thetermination order is illegal, that he consequently has right to bereinstated, and that he can agitate the same at his own sweet-will. Neitherof these three assumptions are true, as elaborated by us earlier.

CONCLUSION

20. For the reasons aforementioned, the appeals are allowed. Theimpugned order delivered by the learned Single Judge on 05.04.2007 aswell as the order dated 29.04.2016 of the Division Bench upholding it,are set aside. Respondent’s writ petition is consequently dismissed. As asequel thereto, the High Court’s interim order dated 02.11.2016 inCContempt No. 1271 of 2016, which is under challenge in SLP (Crl.) No.2014 of 2017, is also quashed and the contempt petition stands dismissed.No order as to costs.

Kalpana K. Tripathy

Appeals allowed.