Calcutta High Court (Appellete Side)
Ac Girija Sankar Das vs The State Of West Bengal & Ors on 24 April, 2012
Author: Harish Tandon
Bench: Harish Tandon
1
Court 24.4.2012 W.P. 21192 (W) of 2011
No.3
Sl.5
ac Girija Sankar Das
-vs-
The State of West Bengal & Ors
Mr. Gauranga Kumar Das ... For Petitioner
In spite of service no one appears on behalf of
the State respondents. Affidavit-of-service along with the
down loaded information from the server relating to the status of service by speed post and the notice dated 11th April 2012 filed today be kept with the record.
Petitioner, an Assistant Teacher in Rajnagar Gholapara F.P. School, attained the age of superannuation on and from January 7, 2000. In spite of having submitted all the relevant papers, the concerned authority did not disburse the pensionary/retiral benefits on the date of attaining superannuation. After a lapse of two/three years the respondent no.2, the Director of Pension, Provident Fund & Group Insurance, West Bengal herein, issued pension payment order on March 12, 2002 and January 8, 2003. The petitioner has taken out the instant writ petition for the first time in the year 2011, i.e. after a gap of eight years from the date of the payment of gratuity to the deceased employee.
A point was taken whether such a writ petition could be entertained after considerable lapse of time because of the inordinate delay and laches on the part of the petitioner.
The petitioner relies upon a judgment of the Co-ordinate Bench in case of Niranjan Kumar Mondal -vs-
2The State of West Bengal & Ors., reported in (2012)1 WBLR (Cal) 903. It is contended that payment of the retiral dues, being a service related claim, is a continuing wrong and, as such, the writ petition cannot be thrown on the ground of inordinate delay and laches.
Upon noticing the said judgment, it appears that in the given case, the employee attained age of superannuation on and from January 7, 2000 and the pension payment order was issued on March 12, 2002 and January 8, 2003.
The writ petition filed in the year 2011 and one of the point which was taken was whether the interest could be awarded for delayed payment of the retiral benefit after a lapse of considerable period of time. In such perspective, it is held that:-
"14. The said decision of the Hon'ble Supreme Court makes it clear that the claim of interest on delayed payment of retiral dues flows from the fundamental rights guaranteed under the Constitution. Claim for interest cannot be held to be a stale claim as right to claim interest on delayed payment of retiral dues accrues due to continuing wrong committed by the State respondents for withholding the payment of the petitioner's retiral dues causing continuous injury to the petitioner until such payment is made.
15. Let me explain as to how non-payment of interest amounts to a continuing wrong. It has now been settled universally that payment of retiral dues is not a bounty. The scheme for payment of such retiral dues was 3 introduced by the State Government by the Office Memorandum dated 26th May, 1998. Under the said scheme the State Government is required to pay the retiral dues such as death-cum-retiring gratuity, commuted value of pension etc., on the day following the date of his retirement. If such payment is not made on the said date, then the State Government acquires a liability to pay interest on delayed payment of such retiral dues, simultaneously corresponding right to claim interest on delayed payment of retiral dues is accrued in favour of the retired person as such right is recognised in the Part III of the Constitution. Thus, whenever such retiral dues is paid to a retired person beyond the due date, the State Government is required to pay interest till the date of payment of such retiral dues, so that the interest which he could have earned by way of depositing his retiral dues in any Nationalized Bank or any financial institutions from the date since when it became due and payable to him upto the date of payment thereof, can be recovered by him from the employer. This liability to pay interest by the State, in my view, continues till the date of actual payment of the retiral dues but in case interest is not paid along with the retiral dues, liability to pay interest continues till the date of payment of interest as the interest which was accumulated on the retiral dues upto the date of payment of such retiral dues, also carries interest day to day until such interest is paid. Thus, this Court is of the view that nonpayment of interest on delayed payment of retiral dues is a continuing wrong causing continuous injury to the petitioner.4
16. It has been held by the Hon'ble Supreme Court in case of Union of India & Ors. -vs- Tarsem Singh, reported in (2008)8 SCC 648, that where a service related claim is based on a continuing wrong, relief can be granted even if there is long delay in seeking remedy, as continuing wrong creates a continuous source of injury and the claim never gets fridged until payment is made.
17. Thus, by following the aforesaid decisions of the Hon'ble Supreme Court, this Court holds that entertainment of the writ petition cannot be refused on the ground of delay as the petitioner has come before this Court seeking relief by agitating a continuing wrong on the part of the State respondents causing continuous injury to him." (Emphasis supplied) The law enunciated in the said report squarely applies in the facts of the present case. The claim of the writ petition, therefore, cannot be refused on the ground of delay as non-payment of interest, on a delayed payment of pensionary benefit, is a continuing wrong. Furthermore, in the said report, the Co-ordinate Bench recorded the stand of the State Government in implementing the Court's order for payment of interest on delayed payment of gratuity in the following words:
"22. Thus, when the State Government, on its own, took a decision to implement the Court's order for payment of interest on delayed payment of Gratuity and further when the State Government granted interest on delayed payment of Gratuity in numerous cases following 5 the orders of this Court which were passed by taking note of such concession given by the State Government, this Court does not find any justification to reject the petitioner's claim for interest merely on the ground of delay when this Court finds that the State itself committed default in discharging its duty to pay such legitimate dues of the petitioner at the right time and because of nonpayment of interest, the petitioner has made to suffer a continuous injury till date." (Emphasis supplied) Thus, in view of the above, the petitioner is entitled to an interest on the delayed payment of gratuity. Since the petitioner could not apprise the Court about the date on which actual payment is made the respondent no.5, The Treasury Officer, Kakdwip, South 24 Parganas herein, is directed to pay the interest @ 8% per annum on delayed payment of such gratuity from the date of attainment of superannuation till the date of actual payment and such amount shall be paid within eight weeks from the date of communication of this order. In default of payment of an amount indicated above within the stipulated period, the concerned authority shall pay an additional interest @ 2% per annum over and above the interest already awarded till the actual payment is made.
The writ petition is, thus, disposed of. There will be no order as to costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.6
(Harish Tandon, J.)