THE CHAIRMAN, STATE BANK OF INDIA & Anr. v. M. J. JAMES

1.4 The dismissal order passed on 18.04.1985 remained unchallenged for more than four years, as the appeal to the Chief General Manager of the State Bank of India was filed on 20.09.1989. The respondent, however, relies on Clause 22(x) of the Service Code relating to appeals. Undoubtedly, the Service Code does not stipulate any time period within which the appeal may be preferred to the Board of Directors whose decision is to be final, but it is well settled that no time does not mean any time. The assumption is that the appeal would be filed at the earliest possible opportunity. However, the appeal should be filed within a reasonable time. 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 instant 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 THE CHAIRMAN, STATE BANK OF INDIA AND ANOTHER v. M. J. JAMES 379 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 noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge.[Para 27][397-C-H; 398- A-B]

1.5 The appeal preferred by the respondent with the Chief General Manager of the State Bank of India had remained unattended for almost nine years. The appellants, it is apparent, simply lost track and forgot that the service appeal was filed or pending. The respondent was never an employee of the appellant’s bank as his services were terminated, nearly four months before the Bank of Cochin, a private Bank, got amalgamated with the State Bank of India. The appellants being at fault must bear the burden and adverse consequences.[Para 28][398-B-D] Ram Chand and Others v. Union of India and Others (1994) 1 SCC 44 : [1993] 2 Suppl. SCR 558; State of U.P. and Others v. Manohar (2005) 2 SCC 126 : [2004] 6 Suppl. SCR 911; Union of India and Others v. Tarsem Singh (2008) 8 SCC 648 : [2008] 12 SCR 104; Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Others (1979) 2 SCC 409 : [1979] 2 SCR 641; U.P. Jal Nigam and Another v. Jaswant Singh and Another (2006) 11 SCC 464 – referred to.

1.6 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. In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, 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. 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 A B C D E F G H 380 SUPREME COURT REPORTS [2021] 7 S.C.R. and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance. However, acquiescence will not apply if lapse of time is of no importance or consequence. [Para 29][400-B-E] Prabhakar v. Joint Director, Sericulture Department and Another (2015) 15 SCC 1 : [2015] 9 SCR 890; Gobinda Ramanuj Das Mohanta v. Ram Charan Das and Suyamal Das AIR 1925 Cal 1107; M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584; Krishan Dev v. Smt. Ram Piari AIR 1964 HP 34 – referred to. UN Mitra, Tagore Law Lectures – Law of Limitation and Prescription, Volume I, 14TH Edition, 2016 – referred to.

1.7 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. Given the said 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 acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.[Para 30][400-E-G; 401-A-B]

1.8 The questions of prejudice, change of position, creation of third–party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing A B C D E F G H THE CHAIRMAN, STATE BANK OF INDIA AND ANOTHER v. M. J. JAMES 381 or are not traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit. These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, this Court has factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment.[Para 31][401-B-E]