Calcutta High Court
Angshuman Ray And Ors vs The State Of West Bengal And Ors on 18 August, 2023
OD 5
WPO 711 of 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
ANGSHUMAN RAY AND ORS.
VERSUS
THE STATE OF WEST BENGAL AND ORS.
BEFORE:
The Hon'ble JUSTICE LAPITA BANERJI
Date : 18th August, 2023.
APPEARANCE:
Mr. Debdutta Basu,Adv.
...for the petitioner.
Mr. Santanu Kumar Mitra,Adv.
Mr. Abhishek Banerjee,Adv.
...for State respondents.
Mr. Niladri Bhatacharjee,Adv.
Ms. Deblina Chattaraj,Adv.
Ms. Angana Dutta,Adv.
...for WBTC Limited.
The Court: - The petitioners are retired employees of West Bengal State
Transport Corporation Limited (WBTCL). The petitioner no. 1 retired from
service with effect from August 13, 2001. The petitioner no. 2 resigned on May
31, 2007. The petitioner no. 3 resigned on September 8, 1999. The petitioner
no. 4 retired on June 30, 2000. The petitioner no. 5 retired on April 30, 2005.
The petitioner no. 6 retired on October 31, 2018. The petitioner no. 7 retired on
July 31, 2022. The petitioner no. 8 retired on April 30, 2015. The petitioner no.
9 retired on March 31, 2019. The petitioner no. 10 retired on April 30, 2009.
The petitioner no. 11 retired on January 31, 2020. The petitioner no. 12 retired
on August 31, 2022. The petitioner no. 13 retired on January 31, 2022. The
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petitioner no. 14 retired on April 30, 2019. The petitioner no. 15 retired on
October 31, 2021.
The writ petitioner has prayed for release of interest on account of
arrears of refund of Pay and Allowance (ROPA), 1998 benefits. Vide
Memorandums dated June 23, 2000 and July 21, 2000 the writ petitioner was
assured by the West Bengal Transport Corporation Limited (WBTCL) formerly
known as the Calcutta Tramways Company (1978) Limited that the arrears of
ROPA benefits would be paid to the employees of the Corporation with effect
from November 1, 2002 in five annual instalments along with interest to be
calculated from April 1, 2000 at the same rate as admissible in respect of
accumulation in the general provident fund. The arrears of ROPA benefits were
not given within the stipulated period as assured under Memorandums dated
June 23, 2000 and July 21, 2000. The writ petitioner has voluntarily retired
from service with effect from November 30, 2018. Mr. Basu, learned Counsel
appearing for the petitioner, submits that he is covered by several judgements
passed by Co-ordinate Benches of this Hon'ble Court and also the Hon'ble
Division Bench on the issue that the period of limitation under the Limitation
Act, 1963 is not applicable to the writ petitions. He cites a judgement reported
in 2022(2) SCC 301 (Chairman, State Bank of India & Anr. Vs. M.J. James),
in support of his contention that the doctrine of acquiescence is not applicable
to the present writ petitioner. Acquiescence does not mean standing by while
violation of a right is in progress. Acquiescence means of assent after the
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violation has been completed and the claimant has become aware of it. In such
case it would be unfair/unjust to give the claimant remedy which he by his
conduct has waived. He submits that if a statutory authority has not performed
its duty within a reasonable time, it cannot justify the same by taking the plea
that the person who has been deprived of his rights has not approached the
appropriate forum for relief by relying on (Ram Chand Vs. Union of India)
reported in 1994 (1) SCC 44. He also relies on a Division Bench judgement of
this Hon'ble Court passed in FMA 3942 of 2016 on January 5, 2022
(Amarnath Tiwari & Ors. Vs. State of West Bengal & Ors.). The Hon'ble
Division Bench held that the writ petitioners claim for interest flows from a
decision taken by the Government of West Bengal which was implemented by
the respondent corporation. There was no dispute with regard to the
entitlement of the interest and the period for which the interest is to be paid. In
such case the respondent company cannot non-suit the writ
petitioners/appellants because they have approached the respondent belatedly.
Since the entitlement of the writ petitioners for payment of interest attained a
statutory colour as it was due to a policy decision of the government, the
respondent company could not wriggle out their liability. Therefore, the Hon'ble
Division Bench allowed the interest to be paid to the appellants/writ petitioners
even though they had approached the authorities/court belatedly.
Ms. Chattaraj, learned Counsel appearing on behalf of the respondent
corporation, relies on a decision reported in 2022 SCC OnLine SC 641
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(Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation) for
the proposition that the delay and laches may defeat the claim of the writ
petitioners.
Considering the rival submissions of the parties and the materials on
record, this Court is of the view that the assurance of the corporation has
resulted in the writ petitioner's claim having a statutory colour. The principal of
limitation is strictly not applicable in case of a writ petition. This Court relies
on a judgement of the Hon'ble Apex Court reported in AIR 2022 SC 4538 (State
of Rajasthan Vs. O.P. Gupta) in coming to the finding that the difficulties of a
retired employee cannot be ignored or not considered in holding that since the
writ petitioners have not approached the Court within three years from the
date of retirement/severance of the employee-employer relationship, the writ
petition is not maintainable on the ground of delay and laches.
The corporation has assured its employees that the arrears would be
granted with effect from November 1, 2022 in five equal instalments and failed
to perform their statutory obligations in terms of the notification issued by the
Government of West Bengal. The corporation failed to give its employees
benefits of ROPA 1998 and now cannot defeat the claim of the writ petitioners
by arguing that some of the writ petitioners have approached the Hon'ble Court
three years after their retirement. The case of Rushibhai Jagdishbhai Pathak
(supra) is completely distinguishable on facts. In that case their higher scale of
pay in the next promotional post was given to the writ petitioners with effect
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from January 1, 2006 on the undertaking that the appellants/writ petitioners
shall give up such benefits made available under the Scheme in case of denial
of regular promotion to the employee. The benefits which were given on and
from March 1, 2006 were withdrawn from October 28, 2010. Nearly after seven
years in September 2017 the appellants/writ petitioners filed writ petitions
seeking to challenge the order dated October 28, 2010 whereby the higher scale
of pay to the next promotional post was withdrawn. In such a case the Apex
Court held that the interest on arrears of the higher scale of pay would be
payable from September, 2017. The Apex Court held that the Hon'ble Division
Bench was wrong to grant interest from the date of judgment passed by the
Single Judge on July 31, 2018. The appellant in consonance with the case of
Union of India Vs. Tarsem Singh reported in (2008) 8 SCC 648 would be
entitled to arrears of the higher scale of pay for three years prior to the filing of
the writ petition along with interest at the rate of 7% per annum with effect
from September 1, 2017 (when the writ petition was filed). This Court fails to
see how the said case is applicable to the facts of the present case. There is no
question of withdrawal of any purportedly wrongful benefits given to the
petitioner and the writ petitioner failing to complain of such withdrawal for
almost about 7 years.
In the present case, the respondent corporation has failed to give the
benefits to the writ petitioner as assured by them under their own office
memorandums dated June 23, 2000 and July 21, 2000 pursuant to the
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Revision of Pay and Allowances, 1998 by the Government of West Bengal.
There is no dispute with regard to the claim of the petitioners in respect of the
entitlement to the payment of arrears and belated disbursal of the same.
In the light of the discussions above, this Court directs interest at the
rate of 6% per annum to be paid to the petitioner from the dates on which the
installments were to be paid to them from November 1, 2002 till such time, the
said arrears are actually paid to the writ petitioner within three months from
date. In case of default of payment within three months, the rate of interest will
stand enhanced to 7% per annum. With the directions aforesaid WPO No. 711
of 2023 is disposed of.
Since no affidavits have been directed to be exchanged in the present
writ petition, all the allegations contained therein are deemed not to have been
admitted by the parties. All parties to act on a server copy of this order
downloaded from the official website of this Court.
(LAPITA BANERJI, J.
s.chandra
