Calcutta High Court
Ashish Banerjee & Ors vs The State Of West Bengal & Ors on 22 September, 2023
OD-30
WPO/1393/2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
ASHISH BANERJEE & ORS.
Versus
THE STATE OF WEST BENGAL & ORS.
BEFORE:
The Hon'ble JUSTICE LAPITA BANERJI
Date : 22nd September, 2023
Appearance :
Mr. Debdutta Basu, Adv.
... for the petitioner
Mr. Santanu Kumar Mitra, Adv.
Mr. Abhishek Banerjee, Adv.
... for State respondents
Mr. Niladri Bhattacharjee, Adv.
Ms. Deblina Chattaraj, Adv.
Ms. Angana Dutta, Adv.
... for WBTC Limited
The Court : The petitioners are all retired employees of West Bengal
State Transport Corporation Limited (WBTCL). The petitioner no.1 is an
existing employee of the WBTCL. The petitioner no.2 retired on July 31,
2012. The petitioner no.3 retired on January 31, 2021. The petitioner no.4
retired on June 30, 2011. The petitioner no.5 retired on March 31, 2008.
The petitioner no.6 retired on January 31, 2019. The petitioner no.7 retired
on March 31, 2022. The petitioner no.8 retired on April 30, 2018. The
petitioner no.9 retired on October 31, 2022. The petitioner no.10 retired on
October 31, 2022. The petitioner no.11 retired on August 31, 2020.
The writ petitioners have prayed for release of interest on account of
arrears of Revision of Pay and Allowance (ROPA), 1998 benefits. Vide
Memorandums dated June 23, 2000 and July 21, 2000 the writ petitioners
were 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 petitioners
no.2 to 11 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 petitioners. Acquiescence does not mean standing by while violation of a
right is in progress. Acquiescence means of assent after the 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 (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 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
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. 1393 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.)
SN.
AR(CR)
