Calcutta High Court (Appellete Side)
For The vs Shree Dnyaneshwar on 19 September, 2018
Author: Protik Prakash Banerjee
Bench: Dipankar Datta, Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Dipankar Datta
and
The Hon'ble Justice Protik Prakash Banerjee
F.M.A. No. 1372 of 2017
M.A.T. No.13 of 2017
With
CAN 123 of 2017
The Provincial Daughters of the Cross St. Vincent's Home and Others
-v-
Mrs. Hasi Sen and Others.
For the Appellants : Mr. Soumyo Majumder, Adv.
Mr. Sanjay Kumar Badi, Adv.
Ms. Arunima Lala Sengupta, Adv.
For the Writ Petitioners/
Respondents No. 1 to 4 : Mr. Uday Chandra Jha, Adv.
Ms. Maheswari Sharma, Adv.
Ms. Tulika Roy, Adv.
For the State of West Bengal : Mr. Biswajit De, Adv.
Ms. Tapati Samanta, Adv.
Hearing concluded on : February 2, 2018, February 16, 2018 and June 7 &
8, 2018
Judgment on : September 19, 2018
PROTIK PRAKASH BANERJEE, J:
1. This appeal has been preferred by the school authorities against the
judgment and order dated December 7, 2016 passed in W.P. No.15316 (W)
of 2016 [Mrs. Hasi Sen and Others--v--State of West Bengal and Others].
The learned single Judge disposed of the writ petition by issuing a writ of
mandamus to implement the directive dated August 31, 2012 issued by the
authorities of the State of West Bengal with a rider that if the school
authorities failed to implement it in terms of the order impugned, the
Deputy Director of School Education (Anglo Indian Schools), the present
seventh respondent, would take appropriate penal action against the school
authorities.
2. The second appellant is an educational institution established and
administered by a religious minority institution. It inter alia imparts
religious instructions thereat. The other appellants are the religious
institution and the authorities of the said second appellant. The writ
petitioners/the present first to fourth respondents (hereafter the writ
petitioners) are the teachers at the said school. They came to the writ court
with a petition affirmed on July 7, 2015, complaining that the school
authorities had not paid the arrears payable to them under the Revision of
Pay and Allowances Rules, 2009 (hereinafter "ROPA 2009") and also that
the State of West Bengal and it's instrumentalities were not taking steps
against the school authorities for violating the orders passed by them
including the direction dated August 31, 2012 passed by the present
respondent no.7. The principal prayers made in the writ petition are as
follows: -
"a. A writ of/in the nature of Mandamus commanding the respondent
authorities and each of them to withdraw, rescind and/or recall any
order that might have been passed against the petitioners directing
non-payment of arrears sin terms of the ROPA 2009 and any action
subsequent thereto and in consequence thereof.
b. A writ of/in the nature of Mandamus commanding the respondent
authorities and each of them to make payment of the arrears for the
period from April 01, 2008 to March 31, 2009 along with interest at
the applicable rate for the period from April 1, 2009 till the realization
of the same.
c. A writ of/in the nature of Mandamus commanding the respondent
authorities and each of them more particularly the respondents no.1
to 4 to initiate appropriate proceeding against the school authorities in
terms of law for violating the orders passed by them."
3. The said directive dated August 31, 2012 is at page 94 of the
application for stay, CAN 123 of 2017. By the said directive, addressed to
the fourth appellant, the principal of the second appellant, the seventh
respondent stated as follows: -
"Sub: Payment of arrears to the teaching & non-teaching staff of St.
Tereasa's Secondary School, 72, Diamond Harbour Road, Kol--23,
from 1st April, 2008 to 31st March, 2009.
Re: Her Memo no. STS/1106/12 dt. 31.1.2012.
In reference to the subject mentioned above, the undersigned
has to inform that the teaching & non-teaching staff of her school
have not been paid arrear amount of pay related to the 6th Pay
Commission for the period from 1st April, 2008 to 31st March, 2009
according to Ropa, 2009 excluding the admissible DA component
released by the Dist. Inspector of Schools (SE) Kol. Once again it may
be reminded that all schools recognized under the Chapter-IV of the
Code of Regulation for Anglo- Indian & Other Schools, 1993 shall pay
their teaching and non-teaching staff's pay, house rent, medical
allowances, gratuity and C.P.F. in the scales not lower than those
approved by the State Govt. in respect of Govt. aided schools affiliated
to the West Bengal Board of Secondary Education or as prescribed
under the relevant Provident Fund Act/Rules of Govt. of India.
St. Teresa's Secondary School, 72, Diamond Harbour Road,
Kol--23, is getting D.A. from the Govt. time to time on the revised
basic pay according to Ropa, 2009 but the teaching & non-teaching
staff have not been paid arrears of pay for the period from 1.4.2008 to
31.3.2009. She is also reminded that to remain a D.A. getting
school, the school authority needs to obey the above-mentioned
code of Regulations, 1993.
Under the circumstances, she is requested to take necessary
steps to pay the arrears to the teaching & non-teaching staff of her
school for the said period in accordance with the provision as laid
down in chapter--IV of Code of Regulations for Anglo-Indian and other
listed schools, 1993.
This may be treated as urgent." (emphasis supplied by me).
4. The above directive dated August 31, 2012 was a sequel to an earlier
direction dated November 24, 2011 issued by the seventh respondent to the
same fourth appellant asking her to take necessary action to pay such
arrears immediately, with which the fourth appellant had not complied.
5. Instead, she had, by a letter dated January 31, 2012 replied to the
seventh respondent explaining why it was not possible for the school to pay
the arrears of the amounts claimed by the writ petitioners under the ROPA
2009, though the current salaries at the same scale as under the said
ROPA, 2009 were being paid to them. This had been referred to in the
directive dated August 31, 2012 as above. The defence that the school took
can be summarized as follows: -
as a religious minority educational institution the school was aware of its
duties of not paying its teaching and non-teaching staff at a scale lower than
that of similarly situated employees in secondary schools affiliated to the
same Board of Education, but since apart from Dearness Allowance which
the Government gave, everything else came from the own sources of the
school, particularly fees generated from its students, the school was not in a
position to pay the arrears of pay caused due to ROPA, 2009 without
raising the fees beyond the capacity of the middle-class from whom its
students primarily hailed.
6. Perhaps it will be instructive to find out exactly what Chapter IV of the
Code of Regulations for Anglo-Indian & Other Schools, 1993 (hereinafter
the "AIS Code") requires an educational institution established and
administered by a religious minority to do, in this regard. Since it is not in
dispute that the second appellant is covered by the said regulations, I go
straight to Chapter IV and more particularly regulation 20, which reads as
follows: -
"Payment of salary, etc: All schools recognized under this Code shall
pay their teaching and non-teaching staff pay, house rent and medical
allowances, Gratuity and Contributor Provident Fund in the scales not
lower those approved by the State Government in respect of
Government aided schools affiliated to the West Bengal Board of
Secondary Education or as prescribed by the relevant Provident Fund
Act/rules of the Government of India."
7. Mr. Jha, Learned counsel appearing for the writ petitioners further
submitted that the appropriate penal action that the seventh respondent
was required to take against the appellant school for not obeying the
directive dated August 31, 2012 is to be found under Regulation 13(a),
which is set out hereinbelow: -
"If, at any time, the D.D, S.E. considers on account of any deficiencies
or any defects that any school no longer fulfils the conditions for
recognition laid down in this Code, he may, after giving an opportunity
to the school to offer its explanation or defence, if any, recommend to
the State Board the withdrawal of recognition of the school, giving
reasons of such withdrawal of recognition.
Provided that if the deficiencies or defects of the school are capable of
immediate or early removal, the State Board may recommend
suspension of recognition for such period as it may think fit, to enable
the managing committee of the school to remedy the deficiencies or
defects to the satisfaction of the State Board."
8. That brings us to two overwhelming questions. The first is, why
exactly were the arrears alleged to be payable under the ROPA, 2009 from
April 1, 2008 to March 31, 2009? The second is why have the appellants
appealed against the command of the Court to comply with the direction
dated August 31, 2012 when they never challenged the direction of the
Government authorities before the command was issued by the Court? The
second question may be summarized as whether the appellants have locus
to maintain the appeal.
9. To understand the gamut of the controversy, I will have to take us
back to ROPA, 2009 and more particularly, paragraph 12 of the ROPA
Rules, 2009, relating to payment of arrears. Rule 12 of the said ROPA,
2009, provides as follows: -
"Payment of arrears: - (1) Notwithstanding anything contained
elsewhere in these rules, or in any other rules for the time being in
force, no arrears of pay to which a Government employee may be
entitled in respect of the period from the 1st day of January, 2006 to
the 31st day of March, 2006, shall be paid to the Government
employee. (2) (a) The arrears of pay to which the Government
employee, may be entitled to in respect of the period from the 1st day
of April, 2008 to the 31st day of March, 2009, shall be paid in three
consecutive equal yearly installments in cash from the year 2008--
2010.
(b) A Government employee, who retired on any date between
the 1st day of January, 2008 to the 31st day of March, 2008, shall not
be entitled to any arrears of pay for the period upto 31st of March,
2008.
A Government employee, who retired between the periods from
the 31st day of March, 2008 to the 1st day of April, 2009, but before
publication of these rules in the Official Gazette, shall receive arrears
pay for the period from the 1st April, 2008 to the date of his
retirement, in cash.
Explanation.- For the purpose of this rule, "arrears of pay", in
relation to a Government employee, means the difference between the
aggregate of pay and allowances to which he is entitled on account of
the revision of pay and allowances under these rules for the period in
question and the aggregate of the pay and allowances to which he
would have been entitled for that period had his pay and allowances
not been revised. The revised allowance (except for dearness allowance
and non-practicing allowance) shall be payable only with effect from
the 1st day of April, 2009.
Note- Non-practicing allowance at the new rate on the revised
pay structure shall be admissible to the officers of the West Bengal
Homeopathic Educational Service, the West Bengal Ayurvedic
Educational Service, the West Bengal Homeopathic Health Service and
the West Bengal Ayurvedic Health Service with effect from 1st day of
April, 2009."
10. The case of the writ petitioners is that the appellants are duty bound
to pay the said arrears regardless of whether they stopped drawing
dearness allowance from the State of West Bengal, since the school had,
admittedly, drawn dearness allowance till January, 2013, which included
the dearness allowance for the period between April 21, 2008 and March
31, 2009. In effect, therefore the writ petitioners are seeking that the
arrears - an amount of money which was calculated pursuant to the orders
of this court together with interest and deposited in court under its earlier
orders - are paid to them and in default recognition of the school be
withdrawn or suspended. Therefore, why the arrears were payable, the first
overwhelming question in paragraph 8, is answered by the ROPA, 2009.
11. From the records before this court it further appears that there are
other disputes between the writ petitioners and/or teachers of the appellant
no.2 and the appellant no.2. These ought not to detain us for long, except
that we note that the bad blood between the teachers and the institution
ultimately hurt only the students.
12. The appellants have challenged the order impugned firstly on the
ground that the writ petition seeking in effect a money relief, suffers from
unexplained delay in a case where the delay is unreasonable and ordinarily
the outermost limit of reasonable delay is the time granted by the statute of
limitation to file a suit for the cause of action and the present writ petition
is beyond that period. If the appeal succeeds on this point, the other
grounds may not need to be decided, though I shall advert to them too.
13. Let me test this primary ground of appeal. A plain reading of Rule 12
of the ROPA, 2009 shows that the arrears of the revised pay were to be paid
in three consecutive equal yearly installments from April 1, 2009 to March
31, 2012. This does not mean that the entire sum was available to be paid
within three years - it means very precisely that one third of the entire sum
payable was to be paid by March 31 of the year concerned, for three years;
the first installment of one third by March 31, 2010, the second installment
of one third by March 31, 2011, and the last installment of one third by
March 31, 2012. Once there was a default in respect of one year, the
default was complete on the expiry of March 31 of that year. If a civil suit
for recovery of that installment which fell in default for one year as a
statutory due was to be instituted, it had to be done within 3 years from
March 31 of that year under Article 7 of the Schedule to the Limitation Act,
1963, since wages in that Article (corresponding to Article 102 of the Act of
1908] was held to include "salary" in the case of Madhav Laxman
Vaikunthe--v--The State of Mysore, reported in AIR 1962 SC 8 (last
paragraph). Thus, the limitation to claim the first two installments expired,
in case of a civil suit, with the expiry of March 31, 2013 and March 31,
2014. The limitation to claim the last installment expired on March 31,
2015. The writ petitioners affirmed their writ petition on July 7, 2015.
Therefore, it was beyond the period of three years from the date when the
period of limitation expired.
14. In order to repel this defence of the appellants on the basis of the
plain words of the statute and pure arithmetical calculation, the writ
petitioners/respondents no.1 to 4 have taken refuge behind Sections 18
and 22 of the Limitation Act, 1963 and a few judgments which they contend
support their respective cases of "acknowledgement of liability" and
"continuing breach of contract or continuing tort", and a few documents,
the first of which is the letter dated August 31, 2012 (referred to in
paragraph 3 of this judgment), the second of which is a strange collection of
papers starting from page 215 of CAN 123 of 2017, the first page of which is
dated December 13 2012 and signed by the appellant no.4, the second page
of which is undated and unsigned and the third page of which is signed by
the appellant no.4 but undated and the three do not seem to be connected
even by internal page numbers, apart from representations made by the
writ petitioners. I will deal with each of these in turn.
15. Let me first see what Sections 18 and 22 of the Limitation Act, 1963
say: -
"Section 18 - Effect of acknowledgment in writing: (1) Where,
before the expiration of the prescribed period for a suit or application
in respect of any property or right, an acknowledgment of liability in
respect of such property or right has been made in writing signed by
the party against whom such property or right is claimed, or by any
person through whom he derives his title or liability, a fresh period of
limitation shall be computed from the time when the acknowledgment
was so signed.
(2) Where the writing containing the acknowledgment is undated, oral
evidence may be given of the time when it was signed; but subject to
the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral
evidence of its contents shall not be received.
Explanation.--For the purposes of this section,--
(a) an acknowledgment may be sufficient though it omits to specify the
exact nature of the property or right, or avers that the time for
payment, delivery, performance or enjoyment has not yet come or is
accompanied by a refusal to pay, deliver, perform or permit to enjoy,
or is coupled with a claim to set-off, or is addressed to a person other
than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent
duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be
deemed to be an application in respect of any property or right.
Section 22 - Continuing breaches and torts: In the case of a
continuing breach of contract or in the case of a continuing tort, a
fresh period of limitation begins to run at every moment of the time
during which the breach or the tort, as the case may be, continues."
16. Let me see whether the letter dated August 31, 2012 satisfies the tests
given in Section 18 of the Act of 1963. It may have been made within 3
years from March 31, 2012, (so far as the last installment is concerned) but
it is not signed by the appellant no.4 or any of the appellants, against
whom the right is claimed by the writ petitioners. It is signed by the
respondent no. 7. The appellants do not derive their liability to make
payment to the writ petitioners/respondents no.1 to 4 through the
respondent no. 7; nor do the appellants derive the property (being the
arrears of salary) from the respondent no. 7. The liability arises out of a
statutory rule. Therefore, it is not an acknowledgment of liability in writing
signed by anyone within the meaning of Section 18 of the Act of 1963 which
would bind the appellants or any of them, even after considering the
explanation. The letter dated January 31, 2012, though in writing and
signed by the appellant no.4, does not extend the limitation to beyond
March 31, 2015. Therefore, neither of these letters extend the period of
limitation as contended by the writ petitioners/respondents no.1 to 4.
17. Next let me examine the documents at pages 215, 216 and 217 of CAN
123 of 2017. The first of these, at page 215, shows that it is written on the
letterhead of the appellant no.2, and signed by the appellant no.4, and
dated at the top as a principal's report on the teachers' cease work/strike
on December 13, 2012. It contains a sort of a prefatory statement that the
principal put up a notice on the teachers notice board, the resolutions of
the managing committee meeting of the appellant no.2 held on December
12, 2012 at 7:30 pm and the contents of the notice were set out, as "Notice
to the Teachers" in numbered paragraphs from 1 to 5. This page ends
without showing that it was continued on any next page. The document is
complete in itself.
The next page, page 216, is undated and unsigned. This, however, contains
in its second paragraph, the brief mention as part of the second sentence
that
"the teachers came inside the principal's office demanding to issue in
writing that the management is not willing to pay them the demanded
arrears, which the principal did not oblige because this decision was
resolved in the managing committee meetings of the past three years."
The third page, once again, is undated but signed by the appellant no.4, and
shows what happened after the school hours, at about 2:45 pm.
While the first page may not be addressed to the writ
petitioners/respondents no.1 to 4, it certainly is addressed to the teachers,
because it was allegedly posted on the Teachers' Notice Board. Yet, it
contains neither denial of liability nor acknowledgement of the liability
within the meaning of the Explanation to Section 18. Again, it does not
appear to me that the unsigned page no. 216 can be held to be part of the
notice to the teachers, within the meaning of Section 18 of the Act of 1963.
Section 18(2) of the Act of 1963 only allows oral evidence to be given as to
the date of an undated document, not that oral evidence of the contents of
an unsigned document, which is not paginated, can be given that it was part
of a notice which is signed on every page other than that page, and which
does not appear from the paragraph-formatting scheme to be a continuation
of the signed page which precedes it. Page 216 does not even contain any
denial of the liability, but only the demand of the teachers for issuing a letter
that the management is not willing to pay the demanded arrears which was
admittedly not given. Had such a letter of refusal been issued, it would have
been an acknowledgment of liability. It was not. it does not appear to me
that page 216 or even 215 or 217 of CAN 123 of 2017 can be brought within
the four corners of Section 18 of the Act of 1963 even if the language of that
section and its explanation is stretched. It would mean reading into the
statute words which are not there. Quite apart, the writ court cannot
normally take oral evidence. No such circumstance has been pleaded or
established here which would impel us to resort to witness action.
18. That brings me to Section 22. Is the non-payment of the arrears of the
benefits under the pay revision a continuing breach of contract or a
continuing tort? I have already indicated that non-payment of the arrears
of benefits under a pay revision is a "money claim". A breach of contract or
a tort, essentially, is a "wrong". It is not a right. Whereas Section 18 of the
Act of 1963 is for the enforcement of a right, (from which the liability flows),
Section 22 is for undoing or compensating for a wrong, or for stopping the
wrong from continuing. Therefore, it must be a continuing "wrong" for the
said provision to come into play.
19. The precedent cited by the writ petitioners/respondents no.1 to 4,
unfortunately, itself militates against its contention. The case was in
respect of a claim governed by the Limitation Act, 1908, in which Section
23 corresponded to the present Section 22 of the Act of 1963. In the said
case of Balkrishna Savalram Pujari and Others--vs--Shree Dnyaneshwar
Maharaj Sansthan and Others reported in AIR 1959 SC 798, their
Lordships held as follows: -
"It is then contended by Mr. Rege that the suits cannot be held to be
barred under art. 120 because s. 23 of the Limitation Act applies; and
since, in the words of the said section, the conduct of the trustees
amounted to a continuing wrong, a fresh period of limitation began to
run at every moment of time during which the said wrong continued.
Does the conduct of the trustees amount to a continuing wrong under
s. 23 ? That is the question which this contention raises for our
decision. In other words, did the cause of action arise de die in diem
as claimed by the appellants ? In dealing with this argument it is
necessary to bear in mind that s. 23 refers not to a continuing right
but to a continuing wrong. It is the very essence of a continuing wrong
that it is an act which creates a continuing source of injury and
renders the doer of the act responsible and liable for the continuance
of the said injury. If the wrongful act causes an injury which is
complete, there is no continuing wrong even though the damage
resulting from the act may continue. If, however, a wrongful act is of
such a character that the injury caused by it itself continues, then the
act constitutes a continuing wrong. In this connection it is necessary
to draw a distinction between the injury caused by the wrongful act
and what may be described as the effect of the said injury. It is only in
regard to acts which can be properly characterised as continuing
wrongs that s. 23 can be invoked. Thus considered it is difficult to
hold that the trustees' act in denying altogether the alleged rights of
the Guravs as hereditary worshippers and in claiming and obtaining
possession from them by their suit in 1922 was a continuing wrong.
The decree obtained by the trustees in the said litigation had injured
effectively and completely the appellants' rights though the damage
caused by the said decree subsequently continued. Can it be said
that, after the appellants were evicted from the temple in execution of
the said decree, the continuance of their dispossession was due to a
recurring act of tort committed by the trustees from moment to
moment ? As soon as the decree was passed and the appellants were
dispossessed in execution proceedings, their rights had been
completely injured, and though their dispossession continued, it
cannot be said that the trustees were committing wrongful acts or acts
of tort from moment to moment so as to give the appellants a cause of
action de die in diem. We think there can be no doubt that where the
wrongful act complained of amounts to ouster, the resulting injury to
the right is complete at the date of the ouster and so there would be
no scope for the application of s. 23 in such a case. That is the view
which the High Court has taken and we see no reason to differ from
it."
20. From my analysis at paragraph 13 of this judgment, it ought to be
apparent that the wrong committed by the default in making payment of
the equal yearly installment for each of the years was completed on the
expiry of the financial year - the wrong completed for non-payment of the
one third of the arrears for April 1, 2008 to March 31, 2009 was completed
on expiry of March 31, 2009 and so on for each respective installment, till
March 31, 2012. The injury caused by such default was not of a character
which continued, since the current salary on fixation of pay with
retrospective effect was being disbursed. Therefore, it did not continue as a
recurring wrong or recurring tort - no cause of action accrued to the writ
petitioners de die in diem. Therefore, this judgment instead of helping the
writ petitioners/respondents no.1 to 4 hammers the last nail into the coffin
of limitation for them. Section 22 of the Act of 1963 is clearly not
applicable to the case as made out by the writ petitioners/respondents no.1
to 4.
21. What then, is the law relating to delay in instituting a writ petition for
enforcement of a legal right as opposed to a fundamental right? Would the
situation be different if the enforcement was that of a right guaranteed
under Part III of the Constitution of India? Would there be any difference if
the enforcement of the fundamental right partook of the nature of a money
claim?
22. Let me get the ground rules clear for this discussion. A writ petition
before the High Court is a discretionary remedy - it is not a matter of right
under Article 226 of the Constitution of India. Even under Article 32 of the
Constitution of India it is a right only for enforcement of a fundamental
right but in appropriate cases the Hon'ble Supreme Court may refuse it, as
a matter of discretion. The principle of law relating to delay and laches as
factors disentitling a party to discretionary remedy was succinctly laid
down by Sir Barnes Peacock in the decision reported in (1874) LR 5 PC
221 (Lindsay Petroleum Co. v. Hurd). The relevant passage reads as
under: -
"11. ... 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 relates to the remedy."
23. The above passage was quoted with approval by a Constitution Bench
of the Supreme Court in the decision reported in AIR 1967 SC 1450 (Moon
Mills Ltd. v. Industrial Courts) and a subsequent Bench comprising three
learned Judges in the decision reported in AIR 1969 SC 329 (Maharashtra
SRTC v. Balwant Regular Motor Service). Lately, the Hon'ble Supreme
Court sitting in Division Benches of two learned Judges had the occasion to
quote the said passage in (2007) 9 SCC 274 (Shiv Dass v. Union of India
as well as in the decisions reported in (2009) 3 SCC 281 [Yunus
Baboobhai A. Hamid Padvekar v. State of Maharashtra] and (2014) 4
SCC 108 (Chennai Metropolitan Water Supply & Sewerage Board v. T.T.
Murali Babu). In Murali Babu (supra), a writ petition filed after 4 (four)
years of dismissal from service was entertained by the High Court. Relying
on several previous decisions and reversing the decision of the High Court,
the Supreme Court held:
"15. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566, the Court
observed that: (SCC p. 594, para 24)
'24. ... it is well settled that the power of the High Court to issue
an appropriate writ under Article 226 of the Constitution is
discretionary and the High Court in the exercise of its discretion
does not ordinarily assist the tardy and the indolent or the
acquiescent and the lethargic.'
It has been further stated therein that: (Nandlal Jaiswal case, SCC p.
594, para 24)
'24. ... If there is inordinate delay on the part of the petitioner in
filing a writ petition and such delay is not satisfactorily
explained, the High Court may decline to intervene and grant
relief in the exercise of its writ jurisdiction.'
Emphasis was laid on the principle of delay and laches stating that resort to
the extraordinary remedy under the writ jurisdiction at a belated stage is
likely to cause confusion and public inconvenience and bring in injustice.
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 second, law
does not permit one to sleep and rise like a phoenix. Delay does bring in
hazard and causes injury to the lis."
(underlined for emphasis by me).
24. While considering whether a belated writ petition (be it under Article
32 or under Article 226) for recovery of money ought to be entertained or
not, any discussion would be incomplete without reference to the decision
reported in AIR 1970 SC 898 (M/s. Tilokchand Motichand and others v.
H.B. Munshi, Commissioner of Sales Tax, Bombay and others). The
Constitution Bench comprising five judges expressed divergent opinions
and by a majority of 3:2, dismissed the writ petition presented under Article
32 of the Constitution seeking refund of money that had been exacted from
the petitioners as a tax in terms of a law which, subsequent to the
payment, had been declared ultra vires by the Supreme Court on September
29, 1967 vide the decision reported in 21 STC 174 (Kantilal Babulal v.
H.G. Patel, Sales Tax Officer). It is noticed that the process of recovery of
tax had earlier been under challenge before the Bombay High Court at the
instance of the petitioners, albeit unsuccessfully, whereupon they were
forced to pay the tax. It would be worthwhile to notice the relevant views of
each of the learned judges of the Bench in the sequence the same were
prepared.
25. In the Constitution Bench judgment referred to in paragraph 24
above, the principal and majority judgment was written by Hon'ble G.K.
Mitter, J, (as His Lordship then was). The following passages from the
opinion of His Lordship clear the view that was taken on the subject
dispute: -
"51. The Limitation Acts do not in terms apply to claims against the
State in respect of violation of fundamental rights. A person
complaining of infraction of any such rights has one of three courses
open to him. He can either make an application under Article 226 of the
Constitution to a High Court or he can make an application to this
Court under Article 32 of the Constitution, or he can file a suit asking
for appropriate reliefs. The decisions of various High Courts in India
have firmly laid down that in the matter of the issue of a writ under
Article 226 the courts have a discretion and may in suitable cases
refuse to give relief to the person approaching it even though on the
merits the applicant has a substantial complaint as regards violation of
fundamental rights. Although the Limitation Act does not apply, the
courts have refused to give relief in cases of long or unreasonable delay.
As noted above in Bhailal Bhai case it was observed that the 'maximum
period fixed by the Legislature as the time within which the relief by a
suit in a civil court must be brought may ordinarily be taken to be a
reasonable standard by which delay in seeking remedy under Article
226 can be measured'. On the question of delay, we see no reason to
hold that a different test ought to be applied when a party comes to this
Court under Article 32 from one applicable to applications under Article
226. There is a public policy behind all statutes of limitation and
according to Halsbury's Laws of England (Third Edition Vol. 24), Article
330 at Page 181
'The Courts have expressed at least three different reasons supporting
the existence of statutes of limitation, namely, (1) that long dormant
claims have more of cruelty than justice in them, (2) that a defendant
might have lost the evidence to disprove a stale claim and (3) that
persons with good causes of action should pursue them with
reasonable diligence.'
52. In my view, a claim based on the infraction of fundamental rights
ought not to be entertained if made beyond the period fixed by the
Limitation Act for the enforcement of the right by way of suit. While not
holding that the Limitation Act applies in terms, I am of the view that
ordinarily the period fixed by the Limitation Act should be taken to be a
true measure of the time within which a person can be allowed to raise
a plea successfully under Article 32 of the Constitution.***
53. A claim for money paid under coercion would be covered by Article
113 of the Limitation Act, 1963, giving a period of three years from the
first of January 1964 on which date the Act came into force. The period
of limitation for a suit which was formerly covered by Article 120 of the
Act of 1908 would in case like this be covered by Article 113 of the new
Act and the suit in this case would have to be filed by the 1st January,
1967. As the petition to this Court was presented in February 1968, a
suit, if filed, would have been barred and in my view the petitioners'
claim in this case cannot be entertained having been preferred after the
1st of January, 1967. The facts negative any claim of payment under a
mistake of law and are only consistent with a claim for money paid
under coercion. As the petitioners have come to this Court long after
the date when they could have properly filed a suit, the application
must be rejected."
(underlined by me for emphasis)
26. Hon'ble R.S. Bachawat, J (as His Lordship then was) writing a
separate opinion concurred with Hon'ble G.K. Mitter, J. According to His
Lordship: -
"31. Two points arise for decision in this writ petition: (1) Would the
claim be barred by limitation if it were the subject-matter of a suit in
February, 1968 and (2) if so, are the petitioners entitled to any relief in
this petition under Article 32 of the Constitution.
32. Subject to questions of limitation, waiver and estoppel, money
paid under mistake or coercion may be recovered under Section 72 of
the Indian Contract Act. The right to relief under Section 72 extends
to money paid under mistake of law i.e. 'mistake in thinking that the
money paid was due when, in fact, it was not due,'....
36. The next and the more fundamental question is whether in the
circumstances the Court should give relief in a writ petition under
Article 32 of the Constitution. No period of limitation is prescribed for
such a petition. The right to move this Court for enforcement of
fundamental rights is guaranteed by Article 32. The writ under Article
32 issues as a matter of course if a breach of a fundamental right is
established. Technical rules applicable to suits like the provisions of
Section 80 of the Code of Civil Procedure are not applicable to a
proceeding under Article 32. But this does not mean that in giving
relief under Article 32 the Court must ignore and trample under foot
all laws of procedure, evidence, limitation, res judicata and the like.***
37. The normal remedy for recovery of money paid to the State under
coercion or mistake of law is by suit. Articles 32 and 226 of the
Constitution provide concurrent remedy in respect of the same claim.
The extraordinary remedies under the Constitution are not intended
to enable the claimant to recover monies, the recovery of which by suit
is barred by limitation. Where the remedy in a writ application under
Article 32 or Article 226 corresponds to a remedy in an ordinary suit
and the latter remedy is subject to the bar of a statute of limitation,
the Court in its writ jurisdiction acts by analogy to the statute, adopts
the statute as its own rule of procedure and in the absence of special
circumstances imposes the same limitation on the summary remedy
in the writ jurisdiction.***
37-A. Similarly this Court acts on the analogy of the statutes of limitation in
respect of a claim under Article 32 of the Constitution though such claim is
not the subject of any express statutory bar of limitation. If the right to a
property is extinguished by prescription under Section 27 of the Limitation
Act, 1963, the petitioner has no subsisting right which can be enforced
under Article 32, see Sobhraj Odharmal v. State of Rajasthan, (1963) Supp
(1) SCR 99 at p. 111=(AIR 1963 SC 640 at p. 645). In other cases where the
remedy only and not the right is extinguished by limitation, it is on grounds
of the public policy that the court refuses to entertain stale claims under
Article 32. The statutes of limitation are founded on sound principles of
public policy. ***
(underlined by me for emphasis)
27. Hon'ble K.S. Hedge, J. (as His Lordship then was) was unable to
concur with the opinions of Hon'ble G.K. Mitter and Hon'ble R.S. Bachawat,
JJ. that remedy under Article 32 of the Constitution was also discretionary,
like Article 226. According to His Lordship, it was the duty of the Supreme
Court to enforce a fundamental right if it were satisfied of breach of a
fundamental right by State action, and delay or laches in approaching the
Court could not be a relevant consideration. His Lordship had the occasion
to observe as follows: -
"58. *** it follows that the impugned collection was without the
authority of law and consequently the same is an exaction resulting in
the infringement of one of the proprietary rights of the petitioners
guaranteed to them under Article 19(1)(f) of the Constitution. Hence the
petitioners have a fundamental right to approach this Court under
Article 32 of our Constitution for appropriate relief and this Court has a
duty to afford them appropriate relief. In Kharak Singh v. State of U.P.,
1964-1 SCR 332=(AIR 1963 SC 1295), Rajagopala Ayyangar, J.,
speaking for the majority observed that once it is proved to the
satisfaction of this Court that by State action the fundamental right of a
petitioner has been infringed it is not only the right but the duty of this
Court under Article 32 to afford relief to him by passing appropriate
orders in that behalf. The right given to the citizens to move this Court
under Article 32 is itself a fundamental right and the same cannot be
circumscribed or curtailed except as provided by the Constitution. It is
inappropriate to equate the duty imposed on this Court to the powers of
the Chancery Court in England or the equitable jurisdiction of the
American courts. A duty imposed by the Constitution cannot be
compared with discretionary powers under Article 32. The mandate of
the Constitution is clear and unambiguous and that mandate has to be
obeyed. It must be remembered, as emphasised by several decisions of
this Court that this Court is charged by the Constitution with the
special responsibility of protecting and enforcing the fundamental rights
under Part III of the Constitution.***
59. All of us are unanimous on the question that the impugned
collection amounts to an invasion of one of the fundamental rights
guaranteed to the petitioners. Our difference primarily centres round
the question whether their right to get relief under Article 32 is subject
to any limitation or to be more accurate whether this court has any
discretion while exercising its jurisdiction under that Article? As
mentioned earlier a right to approach this court under Article 32 is
itself a fundamental right. In that respect our Constitution makes a
welcome departure from many other similar constitutions. As seen
earlier a party aggrieved by the infringement of any of its fundamental
rights has a right to get relief at the hands of this court, and this court
has a duty to grant appropriate relief - see AIR 1965 SC 1514. The
power conferred on this Court by that Article is not a discretionary
power. This power is not similar to the power conferred on the High
Courts under Article 226 of the Constitution. Hence laches on the part
of an aggrieved party cannot deprive him of the right to get relief from
this court under Article 32. ..... Law reports do not show a single
instance, where this Court had refused to grant relief to a petitioner in a
petition under Article 32 on the ground of delay.
61. Admittedly the provisions contained in the Limitation Act do not
apply to proceedings under Article 226 or Article 32. The Constitution
makers wisely, if I may say with respect, excluded the application of
those provisions to proceedings under Articles 226, 227 and 32 lest the
efficacy of the constitutional remedies should be left to the tender
mercies of the legislatures. *** The fear that forgotten claims and
discarded rights may be sought to be enforced against the Government
after lapse of years, if the fundamental rights are held to be enforceable
without any time limit appears to be an exaggerated one. It is for the
party who complains the infringement of any right to establish his right.
As years roll on his task is bound to become more and more difficult.
He can enforce only an existing right. A right may be lost due to an
earlier decision of a competent court or due to various other reasons. If
a right is lost for one reason or the other there is no right to be
enforced. In this case we are dealing with an existing right even if it can
be said that the petitioners' remedy under the ordinary law is barred. If
the decision of Bachawat and Mitter, JJ., is correct, startling results are
likely to follow. Let us take for example a case of a person who is
convicted and sentenced to a long period of imprisonment on the basis
of a statute which had been repealed long before the alleged offence was
committed. He comes to know the repeal of the statute long after the
period prescribed for filing appeal expires. Under such a circumstance
according to the decision of Bachawat and Mitter, JJ., he will have no
right -- the discretion of the Court apart -- to move this Court for a writ
of habeas corpus.
62. Our Constitution makers in their wisdom thought that no fetters
should be placed on the right of an aggrieved party to seek relief from
this Court under Article 32. A comparison of the language of Article 226
with that of Article 32 will show that while under Article 226 a
discretionary power is conferred on the High Courts the mandate of the
Constitution is absolute so far as the exercise of this Court's power
under Article 32 is concerned. Should this Court an institution
primarily created for the purpose of safeguarding the fundamental
rights guaranteed under Part III of the Constitution, narrow down those
rights? The implications of this decision are bound to be far reaching. It
is likely to pull down from the high pedestal now occupied by the
fundamental rights to the level of other civil rights. I am apprehensive
that this decision may mark an important turning point in downgrading
the fundamental rights guaranteed under the Constitution. I am firmly
of the view that a relief asked for under Article 32 cannot be refused on
the ground of laches. The provisions of the Limitation Act have no
relevance either directly or indirectly to proceedings under Article 32.
Considerations which are relevant in proceedings under Article 226 are
wholly out of place in a proceeding like the one before us.***"
(underlined by me for emphasis)
28. Even though Hon'ble S.N. Sikri, J. (as His Lordship then was) held
that the petitioner had explained the delay and was entitled to relief,
approaching the Supreme Court with an Article 32 petition with utmost
expedition was reiterated in the following words: -
""17. *** Bearing in mind the history of these writs I cannot believe
that the Constituent Assembly had the intention that five Judges of
this Court should sit together to enforce a fundamental right at the
instance of a person, who had without any reasonable explanation
slept over his rights for 6 or 12 years. The history of these writs both
in England and the U.S.A. convinces me that the underlying idea of
the Constitution was to provide an expeditious and authoritative
remedy against the inroads of the State. If a claim is barred under the
Limitation Act, unless there are exceptional circumstances, prima
facie it is a stale claim and should not be entertained by this Court.
But even if it is not barred under the Indian Limitation Act, it may not
be entertained by this Court if on the facts of the case there is
unreasonable delay. For instance, if the State had taken possession of
property under a law alleged to be void, and if a petitioner comes to
this Court 11 years after the possession was taken by the State, I
would dismiss the petition on the ground of delay, unless there is
some reasonable explanation. The fact that a suit for possession of
land would still be in time would not be relevant at all. It is difficult to
lay down a precise period beyond which delay should be explained. I
favour one year because this Court should not be approached lightly,
and competent legal advice should be taken and pros and cons
carefully weighed before coming to this Court. It is common knowledge
that appeals and representations to the higher authorities take time;
time spent in pursuing these remedies may not be excluded under the
Limitation Act, but it may ordinarily be taken as a good explanation
for the delay.
18. It is said that if this was the practice the guarantee of Article 32 would
be destroyed. But the article nowhere says that a petition, howsoever late,
should be entertained and a writ or order or direction granted, howsoever
remote the date of infringement of the fundamental right. In practice this
Court has not been entertaining stale claims by persons who have slept over
their rights. There is no need to depart from this practice and tie our hands
completely with the shackles imposed by the Indian Limitation Act. ***"
(underlined by me for emphasis).
29. Hon'ble M. Hidayatullah, C.J. (as His Lordship then was) agreed with
the views of Hon'ble R.S. Bachawat and Hon'ble G.K. Mitter, JJ. and
proceeded to dismiss the writ petition by observing that: -
"2. At the threshold it appears to me that as there is no law which
prescribes a period of limitation for such petitions, each of my brethren
has really given expression to the practice he follows or intends to
follow. I can do no more than state the views I hold on this subject and
then give my decision on the merits of the petition in the light of those
views.
5. This Court does not take action in cases covered by the ordinary
jurisdiction of the civil courts, that is to say, it does not convert civil
and criminal actions into proceedings for the obtainment of writs.
Although there is no rule or provision of law to prohibit the exercise of
its extraordinary jurisdiction this Court has always insisted upon
recourse to ordinary remedies or the exhaustion of other remedies. It is
in rare cases, where the ordinary process of law appears to be
inefficacious, that this Court interferes even where other remedies are
available. This attitude arises from the acceptance of a salutary
principle that extraordinary remedies should not take the place of
ordinary remedies.
9. In India we have the Limitation Act which prescribes different periods
of limitation for suits, petitions or applications. There are also residuary
articles which prescribe limitation in those cases where no express
period is provided. If it were a matter of a suit or application, either an
appropriate article or the residuary article would have applied. But a
petition under Article 32 is not a suit and it is also not a petition or an
application to which the Limitation Act applies. To put curbs in the way
of enforcement of Fundamental Rights through legislative action might
well be questioned under Article 13(3). The reason is also quite clear. If
a short period of limitation were prescribed the Fundamental Right
might well be frustrated. Prescribing too long a period might enable
stale claims to be made to the detriment of other rights which might
emerge.
10. If then there is no period prescribed what is the standard for this
Court to follow? I should say that utmost expedition is the sine qua non
for such claims. The party aggrieved must move the Court at the
earliest possible time and explain satisfactorily all semblance of delay. I
am not indicating any period which may be regarded as the ultimate
limit of action for that would be taking upon myself legislative
functions. In England a period of 6 months has been provided
statutorily, but that could be because there is no guaranteed remedy
and the matter is one entirely of discretion. In India I will only say that
each case will have to be considered on its own facts. Where there is
appearance of avoidable delay and this delay affects the merits of the
claim, this Court will consider it and in a proper case hold the party
disentitled to invoke the extraordinary jurisdiction.
11. Therefore, the question is one of discretion for this Court to follow
from case to case. There is no lower limit and there is no upper limit. A
case may be brought within Limitation Act by reason of some article but
this Court need not necessarily give the total time to the litigant to move
this Court under Article 32. Similarly in a suitable case this Court may
entertain such a petition even after a lapse of time. It will all depend on
what the breach of the Fundamental Right and the remedy claimed are
and how the delay arose.
12. Applying these principles to the present case what do I find? The
petitioner moved the High Court for relief on the ground that the
recovery from him was unconstitutional. He set out a number of
grounds but did not set out the ground on which ultimately in another
case recovery was struck down by this Court. That ground was that the
provisions of the Act were unconstitutional. The question is: can the
petitioner in this case take advantage, after a lapse of a number of
years, of the decision of this Court? He moved the High Court but did
not come up in appeal to this Court. His contention is that the ground
on which his petition was dismissed was different and the ground on
which the statute was struck down was not within his knowledge and
therefore he did not know of it and pursue it in this Court. To that I
answer that law will presume that he knew the exact ground of
unconstitutionality. Everybody is presumed to know the law. It was his
duty to have brought the matter before this Court for consideration. In
any event, having set the machinery of law in motion he cannot
abandon it to resume it after a number of years, because another
person more adventurous than he in his turn got the statute declared
unconstitutional, and got a favourable decision. If I were to hold
otherwise, then the decision of the High Court in any case once
adjudicated upon and acquiesced in, may be questioned in a fresh
litigation revived only with the argument that the correct position was
not known to the petitioner at the time when he abandoned his own
litigation. I agree with the opinion of my brethren Bachawat and Mitter,
JJ., that there is no question here of a mistake of law entitling the
petitioner to invoke analogy of the article in the Limitation Act. The
grounds on which he moved the Court might well have impressed this
Court which might have also have decided the question of the
unconstitutionality of the Act as was done in the subsequent litigation
by another party. The present petitioner should have taken the right
ground in the High Court and taken it in appeal to this Court after the
High Court decided against it. Not having done so and having
abandoned his own litigation years ago, I do not think that this Court
should apply the analogy of the article in the Limitation Act and give
him the relief now. The petition, therefore, fails and is dismissed with
costs."
(underlined by me for emphasis)
30. Close on the heels of the decision in Tilokchand Motichand (supra),
it was urged before another Constitution Bench of the Supreme Court that
the said decision needs review. Speaking for the Bench in the decision
reported in (1970) 1 SCC 84 (Rabindra Nath Bose v. Union of India),
arising out of an Article 32 writ petition, Hon'ble S.N. Sikri, J. overruled
the contention and held as follows:
"32. The learned counsel for the petitioners strongly urges that the
decision of this Court in Tilokchand Motichand case needs review. But
after carefully considering the matter, we are of the view that no relief
should be given to petitioners who, without any reasonable explanation,
approach this Court under Article 32 of the Constitution after
inordinate delay. The highest Court in this land has been given original
jurisdiction to entertain petitions under Article 32 of the Constitution. It
could not have been the intention that this Court would go into stale
demands after a lapse of years. It is said that Article 32 is itself a
guaranteed right. So it is, but it does not follow from this that it was the
intention of the Constitution-makers that this Court should discard all
principles and grant relief in petitions filed after inordinate delay."
31. The view expressed in Tilokchand Motichand (supra) still holds good,
not having been overruled by a larger Constitution Bench decision of the
Supreme Court.
32. That belated writ petitions under Article 32 ought not to be
entertained was reiterated by the Supreme Court subsequently in its
decisions reported in AIR 1975 SC 1269 (Malcolm Lawrence Cecil v.
Union of India), AIR 1981 SC 1495 (S.S. Moghe v. Union of India) and
AIR 1982 SC 101 (R.S. Makashi v. I.M. Menon).
33. By now, it is well-settled that there exists no inviolable rule restricting
the authority or competence of a Court of Writ to entertain stale claims;
whether or not a writ petition deserves entertainment despite delay and
laches, however, ought to be decided on the facts of each case. If no
explanation is furnished for the belated approach, the writ petition could be
summarily dismissed. If the petitioner furnishes an explanation, the merit
thereof has to be examined. If the explanation is unworthy of acceptance,
dismissal of the writ petition would be the obvious outcome. However, if the
petitioner satisfies the Court that there were sufficient reasons that
prevented him from approaching it earlier, entertainment of the writ
petition would not be automatic; in such a case, the Court is duty bound to
assess the prejudice that the opponent is likely to suffer for entertainment
of such belated writ petition and/or acts done in the interregnum that
could affect the balance of justice either way. If prejudice is patent, or
injustice bound to occur if the Court were to entertain the writ petition, the
Court may still dismiss it despite being satisfied that the delay has been
adequately explained or that there was no laches on the part of the
petitioner. If prejudice is not so patent or intervening acts that could affect
the balance of justice are not so obtrusive, a writ petition could be admitted
but if the opponent in his/its counter pleads and proves prejudice or the
likely injustice that he/it would be subjected to if the Court were to grant
relief to the petitioner, the Court would still be justified in declining relief
notwithstanding admission of the writ petition. The point of delay and
laches is not one in the nature of a demurrer that unless raised at the first
instance, it cannot be raised at a subsequent stage of the proceedings.
Therefore, the pleadings are of tremendous importance, whether explaining
the delay or countering the explanation. The questions raised in paragraph
21 of this judgment are answered accordingly.
34. On both the pillars of the ordinary period of reasonable period of delay
having been thus knocked away, the edifice being the writ petition could
only stand if there was any cogent explanation for this period of delay
which was beyond the period of three years from when the period of
limitation for filing a suit expired on March 31, 2015. There is,
unfortunately, none. The writ petition ought therefore to have failed, for
this ground alone, for no mandamus can issue for the enforcement of a
mere legal right whose remedy at civil law stood extinguished by expiry of
the period of limitation since there was no enforceable right at law. If the
writ petitioners had contended that their fundamental right to livelihood
was violated by the non-payment of the arrears pursuant to the revision of
pay, and that there could be no limitation against its enforcement, even
beyond the ordinary period of limitation for a suit, they would have been
required to give cogent explanation for the delay. They have not explained
it. I would have dismissed the writ petition straightway on setting aside the
order of the learned single judge had it not been for the fact that the second
limb of the writ petitioners' submissions is that they are entitled to
enforcement of the directive dated August 31, 2012, by compelling the State
of West Bengal to take appropriate penal action against the school
authorities and the writ petition was well within the period of three years
from the date of August 31, 2012, having been affirmed in July 2015.
Therefore, though the first ground of appeal as in paragraph 12 of this
judgment is answered in favour of the appellants, I have to examine
whether the writ petitioners had any cause of action which was not barred
by unreasonable delay for enforcement of the order dated August 31, 2012,
which was sought to be enforced by the Learned Single Judge, or whether it
already stood enforced as contended by the appellants in paragraph 9 of
this judgment.
35. It is here that the second question referred to in paragraph 8 and the
locus of the appellants to maintain the appeal as raised by Mr. Jha, come
together like rivers of blood, entwined. Mr. Jha's contention is clear cut.
The directive dated August 12, 2012 was clearly a mandate on the school
authorities particularly the principal to pay the arrears in terms of Rule 12
of ROPA Rules, 2009, particularly after considering the appellant no. 4's
reply dated January 31, 2012. The respondent no. 7 had therefore rejected
the representation and threatened the appellant school with penal action if
the school authorities did not obey the provisions of Chapter IV of the AIS
Code, 1993. The appellant school had not obeyed it. Still no penal action
had been taken by the respondent no. 7. Mr. Jha strenuously contended
that even if his clients were not paid their arrears in terms of prayers (a)
and (b) - the money claim - still prayer (c) as extracted in paragraph 2
above survived, and appropriate penal action had to be taken by the
respondent no.7 in terms of Regulation 13 of the AIS Code, 1993. Since the
school had drawn dearness allowance till January, 2013, but had not paid
the arrears of pay in terms of ROPA, 2009 to the writ
petitioners/respondents no.1 to 4 even till that date, hence the penalty of
withdrawal of recognition of the school was still very much on the cards.
The prayer for this was not unreasonably delayed, and had been made
within 3 years from the date that the directive dated August 31, 2012 had
been issued. Since the appellants had not challenged this directive dated
August 31, 2012 they were bound to follow it and non-enforcement of this
directive by the respondent no. 7 is a continuing wrong, and the writ
petitioners/respondents no.1 to 4 did have a cause of action de die in diem
and the order appealed against was perfectly lawful in directing its
enforcement.
36. The appellants have a simple answer to the second question. They
have allowed the directive dated August 31, 2012 to take effect including
giving up the Dearness Allowance which they used to get from the
Government of West Bengal, which was the proposed penal action under
the said directive. So, the directive dated August 31, 2012 has already
taken effect. Nothing more requires to be done. It is not in dispute that the
pay and allowances of the teachers of the appellant no.2 were revised in
tune with ROPA, 2009 in 2009 itself, and this was being paid from after
April 2009. The problem was the arrears in terms of Rule 12 aforesaid.
The case of the appellants is that the school does not have funds to pay the
said arrears in terms of Rule 12 aforesaid and they have represented the
same to the authorities. While they accept that it was their duty to pay
such arrears as a DA getting school, it is their further case that the
respondent no. 7 already indicated the penalty which they would incur if
they did not obey the provisions of Chapter IV of the AIS Code, being
Regulation 20, relating to payment of arrears; the respondent no.7 did not
indicate that any action would be taken under Regulation 13, but that the
appellant no.2 could not both continue as a DA getting school and not pay
the arrears in terms of ROPA, 2009. The respondent no. 7 already
indicated the penalty of forfeiting the DA-getting status, which the school
authorities accepted. This was the withdrawal of the benefit of DA.
37. I have emphasized that the directive dated August 31, 2012 issued by
the respondent no.7 indicated that "to remain a DA getting school the school
authority needs to obey the abovementioned Code". The school accepted
such penalty and ceased to raise bills for dearness allowance and did not
draw it after January, 2013 from the State of West Bengal and was paying
current dearness allowance out of the funds of the school itself.
38. Therefore, so far as the second question is concerned, as in paragraph
8 of this judgment on the basis of which both the locus of the appellants
and the further enforceability of the directive dated August 31, 2012 were
disputed, the answer is simple - the appellants were not required to
challenge the directive dated August 31, 2012 since they accepted the
punishment proposed for their disobedience and stopped being a DA-
getting school. The directive stood enforced from January 2013, when for
non-payment of the arrears of dearness allowance in terms of Regulation 20
of the AIS Code, 1993, the appellant no.2 ceased to draw dearness
allowance from the State of West Bengal as the respondent no.7 had
indicated would be the penal consequence of non-payment of the arrears.
No person can be punished twice for the same fault even if there were two
punishments possible - one harsh and the other less so, and the lesser had
been threatened and imposed. It was for the writ petitioners/respondents
no.1 to 4 to have indicated to the respondent no. 7 that the punishment he
had proposed was too lenient and for them to have challenged the directive
dated August 31, 2012 on the ground that it was not harsh enough.
Instead, the writ petitioners/ respondents no. 1 to 4 relied upon and
claimed on the said directive, without considering or even disclosing in the
writ petition that the said directive so far as the penalty indicated in it was
concerned, had already been given effect to in January 2013. No
explanation has been given by the writ petitioners for accepting the said
directive as it stood. They continue to rely upon it, not merely before the
learned single judge, but also before this Court. Since I have held that the
directive stood enforced on and from January 2013, there is nothing left to
enforce, and no cause of action for the writ petitioners to agitate on that
count.
39. In such view of the matter, the order under appeal directing further
enforcement of the said directive dated August 31, 2012 cannot be
sustained since it would amount to punishing a person twice for the same
fault after having indicated what the penalty would be and imposing it, and
then seeking to impose a harsher penalty without the original penalty being
appealed against.
40. The appeal thus succeeds on the above ground mentioned at
paragraph 12 of this judgment - of unreasonable and unexplained delay -
and the appellants also succeed on the question of their locus as in
paragraph 8, as decided above. Thus, this court is not required to go into
the question of whether the payment of arrears could be enforced against
an educational institution established and administered by a religious
minority in terms of a secular law or to bring parity with benefits available
under a secular law which would jeopardize the very existence of the
minority religious educational institution as argued by Mr. Majumder and
Mr. Baid for the appellants.
41. Consequentially, the impugned judgment and order dated December
7, 2016 is set aside after recording that the directive dated August 31, 2012
has already been given effect to so far as the consequence of its
disobedience is concerned, by the school having forfeited its status as a DA-
getting school. This judgment shall not affect any pending proceedings
relating to any other relief regarding the disciplinary proceedings against
the writ petitioners/respondents no.1 to 4 arising out of any dispute
relating, among other things, to such claim for arrears. There shall be no
order as to costs.
(Protik Prakash Banerjee, J.)
DIPANKAR DATTA, J.
I agree.
(Dipankar Datta, J.)