Calcutta High Court (Appellete Side)
Dayaram Barma vs The State Of West Bengal & Ors on 13 May, 2014
Author: Biswanath Somadder
Bench: Biswanath Somadder
13.5.2014.
ap
W.P. 9057 (W) of 2014
Dayaram Barma
Vs.
The State of West Bengal & Ors.
Mr. Subir Sanyal
Mr. Sakti Pada Jana
... For the petitioner.
Mr. Priyabrata Batbyal
... For the State.
The petitioner retired from service on 30th June, 2010. He chose to remain
silent for more than two and half years after issuance of the Pension Payment Order
in his favour by the concerned authority of the State on 6th July, 2011, which he had
accepted without any demur or protest and only thereafter has now approached the
writ Court on 18th March, 2014, after payment of gratuity was released in his favour
on 10th September, 2013, seeking interest on delayed payment of gratuity.
In support of his case, the learned advocate appearing on behalf of the
petitioner relies on a judgment of the Supreme Court in the case of Deepak Bhandari
vs. Himachal Pradesh State Industrial Development Corporation Limited, reported in
AIR 2014 SC 961, which cannot render any assistance to him in the facts of the
instant case. In that matter, the Supreme Court was considering the question of
applicability of Article 55 of the Limitation Act, 1963, when the Himachal Pradesh
State Industrial Development Corporation Limited took steps for recovery of the
balance amount from one Deepak Bhandari by resorting to the provision of section
29 of the State Financial Corporations Act (63 of 1951). The Supreme Court, in that
case held, inter alia, that the right to claim for the balance arose, under the contract
of indemnity, only when the sale proceeds were found to be insufficient. The right
to sue on the contract of indemnity arose after the assets were sold. The right to sue
on a contract of indemnity/guarantee would arise when the contract is broken.
There is not even an iota of similarity in respect of the judgment cited by the
learned advocate for the petitioner with the instant case. The question here is
whether the petitioner can be indulged by the writ Court - principally in its equity
jurisdiction (in the absence of any enforceable statutory right to claim interest on
delayed payment of gratuity) - especially in a fact situation when he was sleeping
over his valuable legal right to get his gratuity on time legally enforced in the first
place and had suddenly awaken thereafter only to claim interest on delayed payment
of gratuity more than two and a half years after receipt of the Pension Payment
Order - which he had accepted without any demur or protest.
If one has to approach the writ Court essentially seeking relief in equity, he ought to
avail the first opportunity to do so. One cannot file a writ petition, seeking payment
of interest on delayed payment of gratuity, especially when no steps have been taken
by the petitioner to challenge the delay of issuance of the Pension Payment Order
itself.
The other judgment, which has been cited by the learned advocate for the
petitioner is an unreported decision of a Division Bench of this Court rendered in
FMA 3511 of 2013 (Bhutnath Mahato vs. The State of West Bengal & Ors.) on 4th
March, 2014.
Upon careful perusal of the said judgment, it appears that the case of the
appellant before the Division Bench was that the writ petition was dismissed because
it was filed beyond three years of date of retirement of the petitioner. The matter was
decided by the Division Bench in favour of the writ petitioner upon holding, inter
alia, that payment of retiral dues in whatever form it may be, is a recurring liability
of the State until it is actually paid to the retired person. The ratio of the judgment
of the Division Bench is quite distinguishable in the light of the issue as raised in the
present case. In the instant matter, the question - as framed by this Court
hereinbefore - was never an issue before the Division Bench. What does not appear
to have been specifically decided by the Division Bench is whether a cause of action
for approaching the writ Court seeking issuance of a writ in the nature of mandamus
commanding the respondents to pay interest on delayed payment of gratuity can at
all arise without any enforceable statutory right to claim such interest in the first place, especially in a fact situation where the petitioner was sleeping over his valuable legal right of getting his retiral benefits on time, immediately upon attaining superannuation and having accepted the delayed issuance of the Pension Payment Order without any demur or protest and only thereafter seeking a mandatory order - essentially in the nature of relief in equity - for payment of interest on delayed payment of gratuity, two and a half years after issuance of the Pension Payment Order.
A person seeking such an order - which is essentially in the nature of equitable relief - is required to demonstrate unimpeachable bona fides. The petitioner simply could not have allowed interest to have accrued for years by choosing not have his valuable statutory right to get gratuity immediately upon attaining superannuation, enforced through the writ Court. If this kind of fact situation is allowed to be entertained by the writ Court and indulgence is shown to a litigant, it will mean that Article 226 of the Constitution of India is available even to a person who never seeks enforcement of his statutory right to get retiral dues on time through the writ Court in the first place and even allows several years to elapse and thereafter file a writ petition seeking interest on delayed payment of gratuity - essentially, a relief in equity - only upon receiving the Pension Payment Order, belatedly.
In the absence of clear bona fides on the part of the litigant, a writ petition of this nature ought not to be entertained by the writ Court in order to give any equitable relief to the writ petitioner.
For reasons stated above, the writ petition is liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.)