Calcutta High Court (Appellete Side)
Transcriber: Nandy Ratna ... vs The State Of West Bengal & Ors on 7 January, 2022
07.01.2022 MAT 347 of 2020
with
Court : 04 CAN 1 of 2021
Item : 21
Matter : MAT
Status : ALLOWED
Transcriber: nandy Ratna Chowdhury
Vs.
The State of West Bengal & Ors.
Mr. Chandan Dutta, Advocate
......for the Appellant
Mr. Tapan Kumar Mukherjee, Ld. A.G.P.
Mr. Ranjan Saha, Advocate
......for the State
The writ-petition filed by the appellant was
dismissed solely on the ground of delay. What can be
perceived from the impugned order that the learned
single Bench was of the view that the stale claim
should not be resurrected after such a long delay.
The attention of the single Bench was drawn to
the judgement of the Supreme Court in case of M.R.
Gupta Vs. Union of India & Ors. reported in (1998) 5
SCC 628 wherein the Apex Court has held that the
matter pertaining to pay fixation cannot be dismissed
on the ground of lapses and laches or the limitation
having intervened in the meantime. It is further held
that the dispute of such nature is a recurring one and
on each month when the pay or the pension is paid it
gives a fresh cause of action.
The relevant excerpts of the Apex Court
judgment is quoted hereunder:-
"Having heard both sides, we are satisfied that the
Tribunal has missed the real point and overlooked the crux
of the matter. The appellant's grievance that his pay fixation
was not in accordance with the rules, was the assertion of a
continuing wrong against him which gave rise to a recurring
cause of action each time he was paid a salary which was
not computed in accordance with the rules. So long as the
appellant is in service, a fresh cause of action arises every
month when he is paid his monthly salary on the basis of a
wrong computation made contrary to rules. It is no doubt true
that if the appellant's claim is found correct on merits, he
would be entitled to be paid according to the properly fixed
pay scale in the future and the question of limitation would
arise for recovery of the arrears for the past period. In other
words, the appellant's claim, if any, for recovery of arrears
calculated on the basis of difference in the pay which has
become time barred would not be recoverable, but he would
be entitled to proper fixation of his pay in accordance with
rules and to cessation of a continuing wrong if on merits his
claim is justified. Similarly, any other consequential relief
claimed by him, such as, promotion etc. would also be
subject to the defence of laches etc. to disentitle him to
those reliefs. The pay fixation can be made only on the basis
of the situation existing on 1.8.1978 without taking into
account any other consequential relief which may be barred
by his laches and the bar of limitation. It is to this limited
extent of proper pay fixation the application cannot be
treated as time barred since it is based on a recurring cause
of action."
The instant dispute pertains to re-fixation of the
pension in terms of the circulars, which according to
the appellant was applicable. Such cause of action
cannot be said to be barred nor the writ-petition should
be dismissed on the ground of lapses and laches as
the wrong is the continuing one.
We thus set aside the order dated January 3,
2020.
The writ-petition being WP 20845 (W) of 2018
is restored to its original file and number.
The single Bench is requested to dispose of the
writ-petition as expeditiously as possible on merits.
The appeal being MAT 347 of 2020 is allowed.
There shall be no order as to costs.
The connected application being CAN 1 of 2021
also stands disposed of.
(Harish Tandon, J.)
(Rabindranath Samanta, J.)
