Delhi High Court
Sh Ved Prakash vs Govt Of Nct Of Delhi & Ors on 6 September, 2013
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat, Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: September 6, 2013
+ LPA 653/2013
SH VED PRAKASH
..... Appellant
Through : Mr. Ved Parkash and Mr. Bhim Sain,
Advs.
versus
GOVT OF NCT OF DELHI & ORS
..... Respondents
Through : Mr. V.K.Tandon, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE S.RAVINDRA BHAT(Oral)
1. The appellant's grievance is that the learned Single Judge by the impugned order dismissed a writ petition filed in 2010.
2. The claim in the writ petition was for monetary benefits in terms of the resolution of the erstwhile Delhi Vidyut Board dated 16th July, 1997 and a subsequent order of 23rd July, 1997. The sole ground for rejection of the petition was that it was founded on a cause of action which occurred 13 years prior to its institution and was, therefore, held to be barred by principles of laches.
3. Learned counsel urges that learned Single Judge who dealt with LPA 653/2013 Page 1 the petition ignored previous orders which had in fact directed payment of benefits based upon the circulars. He has placed on record certain copies of one such order dated 18th July, 2012 and another order dated 30th November, 2012.
4. Besides these, counsel urges that in another proceeding, i.e. the petition filed by Iqbal Chand Jain, in CWP No.13834/2005 (Iqbal Chand Jain v. Government of NCT of Delhi), the same learned Single Judge, taking note of the hiatus and state of flux which existed vis-a-vis the entitlement to pension and other monetary benefits till the decision of the Supreme Court in North Delhi Power Limited Vs. Govt. of National Capital Territory of Delhi and Ors., 2010 (6) SCC 278, held that :
"Another reason for me not to accept the argument of delay and laches is that it is only in 2010 that the Supreme Court decided as to who was liable i.e. the liability was held to be of the DISCOMs/transferee companies and thus there was no certainty before 2010 as to the entity which will be liable. Thus, it cannot be said that there is such delay and laches for denying the service/terminal benefits to the employees"
It was submitted that in the said proceeding, i.e. Iqbal Chand Jain (supra), the claim in the writ petition was allowed even though the employee LPA 653/2013 Page 2 in that case had approached the Court belatedly, i.e. after eight years and the employee had retired even before the circular dated 23rd July, 1997 was issued.
5. In the impugned order, the learned Single Judge relied upon the decision rendered by him in another batch of proceedings i.e. Suresh Garg v. NDPL & ANR. in W.P.(C) 919/2013 decided on 15th February, 2013. In those proceedings, petitions were filed in 2013. The learned Judge discussed the merits and noted that representations had been made late for the benefit after the judgment of the Supreme Court and held that the claim was highly belated:
"15. I have already stated above, that the judgment of learned Single Judge of this Court dated 28.7.2008 was passed in a writ petition which was of the year 2002. The present petitions are filed in the year 2013. For the aforesaid detailed reasons, I am not inclined to fasten a huge monetary liability upon an organization merely on the ground that one employee of an organization has succeeded in his writ petition, inasmuch as, vigilant persons who approach the Court without delay and seek enforcement of their rights can get their legal entitlement however, merely on the basis of a judgment being passed in favour of one of the employees, the entire fasciculus of employees cannot get the benefits which is granted to one vigilant employee when he succeeds before the Court in his case. Also as stated above if these petitions are allowed, then, floodgates will be thrown open for a large number of persons to seek same LPA 653/2013 Page 3 monetary reliefs."
6. This Court is mindful of the fact that in claims involving entitlement to pay emoluments, service benefits and pension, the consistent view of the Supreme Court has been that delay would not per se bar relief and that the Court would mould the relief having regard to the conduct of the petitioner. Thus in M.R.Gupta versus Union of India, 1995(5) SCC 628, it was held that :
"6. The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Ors. v. Mattapalli, Raju and Ors. AIR (1950) FC 1.
7. learned Counsel for the respondents placed strong reliance on the decision of this Court in S.S. Rathore v State of Madhya Pradesh [1989] Supp. 1 SCR 43. That decision has no application in the present case. That was LPA 653/2013 Page 4
(a) case of termination of service and, therefore, a case one (of) time action, unlike the claim for payment of correct salary according to the rules throughout the service giving rise to a fresh cause of action each time the salary was incorrectly computed and paid. No further consideration of that decision is required to indicate its inapplicability in the present case.
8. For the aforesaid reason, this appeal has to be allowed, we make it clear that the merits of the appellant's claim have to be examined and the only point concluded by this decision is the one decided above. The question of limitation with regard to the consequential and other reliefs including the arrears, if any, has to be considered and decided in accordance with law in due course by the Tribunal. The matter is remitted to the Tribunal for consideration of the application and its decision afresh on merits in accordance with law. No costs."
7. The Court also notices that in a subsequent decision, i.e. Shiv Dass v. Union of India (UOI) and Ors., 2007 (9) SCC 274, it was held as follows:-
"8. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore AIR 1967 SC 993. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samantaray AIR 1976 SC 2617 making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for LPA 653/2013 Page 5 delay alone. (See State of Orissa v. Arun Kumar (AIR1976 SC 1639 also).
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10. In the peculiar circumstances, we remit the matter to the High Court to hear the writ petition on merits. If it is found that the claim for disability pension is sustainable in law, then it would mould the relief but in no event grant any relief for a period exceeding three years from the date of presentation of the writ petition. We make it clear that we have not expressed any opinion on the merits as to whether appellant's claim for disability pension is maintainable or not. If it is sans merit, the High Court naturally would dismiss the writ petition."
8. In the light of the above discussion, the Court is of the opinion that the learned Single Judge ought to consider the merits of the rival contentions of the parties and thereafter decide if the petitioner is entitled to any relief. If such a finding is in fact rendered, the learned Single Judge may then surely take into account the precedents in this regard while factoring the relief to be granted. In other words, the learned Single Judge now have to consider the merits of the contentions and not merely decide that the petition has to be rejected at the threshold on the ground of delay.
9. As a result of the above discussion, the appeal is allowed. The matter is remitted for fresh consideration before the learned Single Judge. The LPA 653/2013 Page 6 parties shall be present before the learned Single Judge on 10 th October, 2013 for directions.
The appeal is allowed in the above terms.
Order dasti.
S. RAVINDRA BHAT, J (JUDGE) NAJMI WAZIRI, J (JUDGE) SEPTEMBER 6, 2013 'sn' LPA 653/2013 Page 7