TaxTMI 
TaxTMI 
2021 (10) TMI 1375
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.... as well. PRIMARY FACTS: 3. Central Power Research Institute (CPRI) is an autonomous body registered as a society under the Karnataka Societies Act, 1960. It functions under the aegis of the Ministry of Power. The object of this institution is to contribute to the power sector in the country for improved planning, operation and control of power systems while serving as a national level laboratory for undertaking applied research in electrical power engineering besides functioning as an independent national testing, certification authority for electrical equipment, components to ensure reliability in power systems and to innovate and develop new products. Thus, there is an extreme element of public interest involved in the functioning of the CPRI. 4. The Respondent/writ Petitioner initially joined the services of CPRI way back in the year 1984 - 05.07.1984. On his request, he was voluntarily retired while working as Engineering Officer, Grade-IV w.e.f. 31.03.2008. 5. By the Office Memorandum dated 08.11.1991, the Government of India, Department of Personnel and Training introduced a procedure which states that for appointment of certain specified posts, the approval of "....
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.... Minister in pursuance of the recommendations made by the Cabinet Secretary. After considering the relevant materials, the Hon'ble Prime Minister as member of the "ACC" gave his seal of approval for an initial tenure of five years or until further orders, with a further direction that the Respondent would be eligible for re-appointment for a further term up to 31.05.2019, the date of his superannuation. 11. An order of appointment was issued by the Ministry of Power vide its letter dated 22.03.2010. On 26.03.2010, the Respondent accepted the offer and joined his office. He was accordingly informed of the decision made by the "ACC" regarding his appointment and tenure, even prior to his acceptance. We may also note that due intimation has been given on the terms and conditions, including the pay scale. 12. The Respondent went on performing his part from the date of him taking charge without any demur. On finding his tenure coming to an end, for the first time he submitted a representation after about four years and nine months from the date of his joining, to the Secretary, Ministry of Power on 30.12.2014, taking a stand that since his appointment was made by way of direct....
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....e Rules governing the present case. THE INDIAN CONTRACT ACT, 1872: 18. Section 3 of the Act concerns itself with an act of communication, acceptance, and revocation of proposal. When an offer is made, it is required to be accepted by the receiver to partake the character of a concluded contract. Hence, the knowledge of the terms of the offer is a primary and essential factor for acceptance. To understand this better, when an acceptance is made in an unqualified manner, it takes in its sweep the said acceptance along with the knowledge of the terms of the offer. This is for the reason that an unaccepted offer creates neither any right nor obligation. Such an acceptance as existing Under Section 7 of the Act must both be absolute and unqualified. As per Section 8, the performance of the conditions of a proposal or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal is an acceptance of the proposal. Hence, an absolute and unqualified acceptance would give birth to the contract along with the terms of the offer. 19. Section 39 deals with the effect of the refusal of the party to perform a promise wholly. Though we are not concerned....
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....easonable to facilitate a challenge before the Court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy. 23. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a Defendant can succeed on the various grounds raised by the Plaintiff, while an issue concerned alone would be amenable to acquiescence. ACQUIESCENCE: 24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. 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 pr....
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....; But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present Appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. [(1921) 2 KB 608], and in particular, the observations of Scrutton, LJ, at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him....
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....e acted on it. * State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144: 22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. V. Mr. P. Firm Muar [CIT v. V. Mr. P. Firm Muar AIR 1965 SC 1216]). 23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service AIR 1969 SC 329].) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under: (SCC pp. 687-88, para 10) 10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he....
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....or Resources (International) Co. Ltd. [: (2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer (2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260]. 16. Thus, it is evident that the doctrine of election is based on the Rule of estoppel--the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a Rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had. ARTICLE 226 OF THE CONSTITUTION OF INDIA: 28. We would not dwell deep into the extraordinary and discretionary nature of relief Under Article 226 of the Constitution of India. This principle is to be extended much more when an element of undue delay, laches and acquiescence is involved. The following decisions of this Court would suffice: * UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464: 8. Our attention was also invited to a deci....
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....it was observed as follows: (SCC p. 398, para 9) 9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The Respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987]. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief. 11. In Govt. of WB v. Tarun K. Roy (2004) 1 SCC 347 : 2004 SCC (L&S) 225 their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) 34. The Respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in fi....
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....; 26. In R. v. Dairy Produce Quota Tribunal, exp Caswell (1990) 2 AC 738 : (1990) 2 WLR 1320 : (1990) 2 All ER 434 (HL), AC at p. 749, the House of Lords stated [Ed.: Quoting from O'Reilly v. Mackman, (1982) 3 All ER 1124 at p. 1131a-b.]: (All ER p. 441a-b) The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. 27. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [1874 LR 5 PC 221 : 22 WR 492], thus: (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 wh....
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....fective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 21. In this regard reference to a passage from Karnataka Power Corporation Ltd. v. K. Thangappan [Karnataka Power Corporation Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] would be apposite: (SCC p. 325, para 6) 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. After so ....
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....(2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38], it has been ruled thus: (SCC p. 117, para 16) 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 secon....
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....he part of the Petitioners. (Vide Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185], Collector (LA) v. Katiji [Collector (LA) v. Katiji,: (1987) 2 SCC 107 : 1989 SCC (Tax) 172], Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598], Dayal Singh v. Union of India [Dayal Singh v. Union of India, 2003 : (2003) 2 SCC 593] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56].) 29. The aforesaid principle is also required to be adopted while considering a case involving approbation and reprobation. DOCTRINE OF FAIRNESS: 30. The doctrine of fairness is inbuilt in every employer and employee relationship. The said doctrine has to be applied after the relationship come into being rather than at the stage of recruitment. While dealing with recruitment, on the question of suitability and adequacy, substantial discretion is appropriately conferred on the employer. At that stage, the question is with respect to the need of the ....
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....ice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract -- or rather more so. It is one thing to say that a contract -- every contract -- must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract, just because it happens to be the state. They are not prepared to apply the very same Rule in converse case, i.e., where the state has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation to lift all those stocks even if the state suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned Counsel for the licensees do not support their proposition. In Dwarkadas Marfati....
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....l of the Government of India. 32. The Rules per se do not prohibit a tenure appointment. The definition of direct recruitment would mean recruitment through a process stipulated under the rules. Therefore, by no stretch of the imagination, one can interpret that all direct recruitments are to be made by regular employment. Therefore, direct recruitment can also be made for filing up the post on a tenure basis. Hence, in the absence of any statutory bar under the rules, a tenure appointment made through direct recruitment by following the due procedure cannot be termed as contrary to law. In a direct recruitment the appointment on a regular or tenure basis is the discretion of the employer, especially when the Rules do not prohibit. Rule 48 speaks of the age of superannuation for a regular employee, which will be the completion of sixty years. There is no difficulty in appreciating the said rule, which deals with a regular employee alone and therefore can have no application while dealing with an appointment made on a tenure basis. After all, a Court of law cannot give a different status to an employee than the one which was conferred and accepted especially when the same is not ....
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....les while recording its findings which do not warrant any interference. There is a clear violation of Articles 14 and 16 of the Constitution of India. On the first occasion, there is nothing to infer that relevant materials have been considered, and on the second, "ACC" has not been put on notice on the adverse report. The adverse report itself has been prepared by persons junior to the Respondent, and therefore, the same ought to be eschewed. There is no power or authority in passing the impugned termination order. Since the very case of the Respondent is that he should be continued till the date of his superannuation, the impugned order passed by the Appellants is not a mere relieving order but a termination. The Division Bench has not considered the other relief sought by the Respondent, and therefore in light of the findings rendered, the writ petitions are liable to be allowed in toto. There are no statutory Rules for a tenure appointment, and hence the Respondent should have been treated as a regular employee. The annual performance reports of the Respondent found him to be "outstanding". The President, CPRI-GC, does not have the power to terminate, as the "ACC" being the app....
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....onstitutional authority on the executive side was misled by the lower officials. We find no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. 39. There is a marked difference between the assessments made during the Respondent's tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Hon'ble Minister concerned apart from the Cabinet Secretary. What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench has misconstrued direct recruitment to mean an appointment to a permanent post. We are dealing with direct recruitment to a post of primary importance, i.e. Director-General, which is to be filled on a tenure basis. The Rules as perused and understood by us do not prohibit a tenure appointment. In the absence of a....