Calcutta High Court (Appellete Side)
Partha Dey & Ors vs The State Of West Bengal & Ors on 4 September, 2023
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 93 of 2019
Partha Dey & ors.
Vs.
The State of West Bengal & ors.
For the writ petitioners : Mr. Sandeep Sanyal, Advocate
Mr. Sukanta Das, Advocate
Mr. Chandrachur Lahiri, Advocate
For the State : Mr. Tapan Kr. Mukherjee,
Sr. Advocate & A.G.P.
Mr. Pinaki Dhole, Advocate,
Ms. Tuli Sinha, Advocate
Hearing on : 04.09.2023
Judgment on : 04.09.2023
DEBANGSU BASAK, J.:-
1. The writ petition is directed against an order dated January 8,
2019 passed in O.A.956 of 2014 by the West Bengal Administrative
Tribunal.
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2. By the impugned order, the Tribunal, negated the claim for retiral
benefit of the writ petitioner.
3. Learned advocate appearing for the writ petitioners submits that,
the father of the writ petitioners was initially appointed as a part time
Lecturer of a Homoepathic Medical College and Hospital on September
25, 1972. He was made permanent on June 27, 1973. He was
superannuated on March 1, 1991. After attaining the age of
superannuation, the father of the writ petitioners was reemployed by the
Department of Health & Family Welfare for the period from March 2,
1991 to February 29, 1996.
4. Learned advocate appearing for the writ petitioners submits that,
the college was sought to be acquired under the provisions of the
Midnapore Homoepathic Medical College and Hospital (Take Over of
Management and subsequent Acquisition) Act, 1984. The notification
under Section 3 of 1984 Act was issued on April 10, 1985. In breach of
the provisions of Section 4 of the Act of 1984, acquisition notification was
not issued within the period of five years of the take over notification but
was issued thereafter, on March 30, 1993. The father of the writ
petitioners should be treated as a government employee and retiral
benefits should be granted for duties discharged by him on and from
September 25, 1972 till his superannuation on March 1, 1991.
5. Learned advocate appearing for the writ petitioners relies upon
(2007) 9 Supreme Court Cases 274 (Shiv Dass versus Union of India
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and others) and (2008) 8 Supreme Court Cases 648 (Union of India
and others versus Tarsem Singh) and submits that, nonpayment of
retiral benefit is a continuing wrong and therefore, question of limitation
does not arise. Moreover, at best the claim of the writ petitioners can be
restricted to three years prior to the date of approaching Tribunal.
6. Learned Senior Advocate appearing for the State draws the
attention of the Court to the provisions of Section 21 of the
Administrative Tribunal Act, 1985. He submits that, the period of
limitation prescribed is one year from the date on which the final order
was made. In the facts of the present case, he submits that, the cause of
action of the father of the writ petitioners arose on March 1, 1991. The
father of the writ petitioners approached the Tribunal in 2014 and
therefore, the approach was barred under Section 21 of the Act of 1985.
7. In the facts of the present case, the father of the writ petitioners
was initially appointed as a part time Lecturer in the Medinapore
Homoeopathic Medical College and Hospital on September 25, 1972. He
was made a permanent Lecturer on June 27, 1973. He superannuated
on March 1, 1991.
8. The College at which he was working as a permanent Lecturer was
sought to be take overunder the provisions of the Act of 1984 by
issuance of a notification under Section 3 thereof being April 10, 1985.
The acquisition notification was issued on March 30, 1993. In the facts
of the present case, the fact that there was delay in issuance of an
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acquisition notification subsequent to the issuance of a notification
under Section 3 of the Act of 1984 is established. The father of the writ
petitioners superannuated on March 1, 1991. Assuming that he is to be
considered as a government employee then also, he was required to
ventilate his grievances before an appropriate forum within one year from
March 1, 1991. He approached the Tribunal in 2014.
9. Section 21 of the Act of 1985 prescribes the period of limitation for
approaching the Tribunal. It prescribes a period of one year from the date
when, the authority passed the final order. Sub-section (2) of Section 21
of the Act of 1985, however, allows the Tribunal to admit an Original
Application filed beyond the prescribed period of one year in the event,
the applicant satisfies the Tribunal that the applicant was prevented by
sufficient cause from not making the application within the prescribed
period of one year.
10. Shiv Dass (supra) considers the issue of delay and laches in
approaching the High Court under Article 226 of the Constitution of
India. It is of the view, that, normally belated approach to the Writ Court
is not entertained. Delay or laches is one of the factors which is taken
into consideration by the Writ Court in exercising discretionary powers.
In the facts of that case, the writ petitioner therein approached the High
Court for disability pension. The writ petitioner therein was out of service
in 1983 and filed writ petition in 2005. In such circumstances, the
Supreme Court held that in case of pension, the cause of action accrues
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and continues from month to month. However, delay in filing the petition
should not be overlooked. It went on to say that if the petition is filed
beyond the reasonable period of three years normally Court should reject
the same and restrict the relief which could be granted to a reasonable
period of three years. In the peculiar circumstances, the Supreme Court
remitted the matter to the High Court to hear the writ petition on merits.
11. In Tarsem Singh (supra) the Supreme Court was again faced with
a writ petition concerning disability pension. The respondent therein was
out of service from November 13, 1993 and approached the Tribunal in
1999 seeking disability pension. It notices various authorities of the
Supreme Court on the aspect of delay and laches including Shiv Dass
(supra). It observes as follows:-
"7. To summarise, normally, a belated
service related claim will be rejected on the
ground of delay and laches (where remedy is
sought by filing a writ petition) or limitation
(where remedy is sought by an application to the
Administrative Tribunal). One of the exceptions to
the said rule is cases relating to a continuing
wrong. Where a service related claim is based on
a continuing wrong, relief can be granted even if
there is a long delay in seeking remedy, with
reference to the date on which the continuing
wrong commenced, if such continuing wrong
creates a continuing source of injury. But there is
an exception to the exception. If the grievance is
in respect of any order or administrative decision
which related to or affected several others also,
and if the reopening of the issue would affect the
settled rights of third parties, then the claim will
not be entertained. For example, if the issue
relates to payment or refixation of pay or
pension, relief may be granted in spite of delay
as it does not affect the rights of third parties.
But if the claim involved issues relating to
seniority or promotion, etc., affecting others,
delay would render the claim stale and doctrine
of laches/limitation will be applied. Insofar as
the consequential relief of recovery of arrears for
a past period is concerned, the principles relating
to recurring/successive wrongs will apply. As a
consequence, the High Courts will restrict the
consequential relief relating to arrears normally
to a period of three years prior to the date of
filing of the writ petition."
12. In Tarsem Singh (supra), the Supreme Court directed the claim to
be restricted to three years before the date of the filing of the writ
petition.
13. In the facts of the present case, the father of the writ petitioners
superannuated on March 1, 1991. He approached the Tribunal in 2014
for retiral benefits which includes pension.
14. The father of the writ petitioners would therefore be entitled to
pensionary benefits for the period commencing from three years prior to
the date of his approach to the Tribunal, if at all he is entitled to
pensionary benefits which we will immediately consider.
15. The father of the writ petitioners was admittedly working as a
permanent Lecturer at the Midnapore Homoeopathic Medical College and
Hospital which was taken over and acquired under the provisions of the
Act of 1984 by the State.
16. The take over and acquisition modalities under the Act of 1984
prescribed is two tier. Section 3 of the Act of 1984 provides for the take
over of management of the institution and Section 4 provides for
acquisition of the institution. Section 3 and Section 4 of the Act of 1984
are as follows:-
"3. Taking over of management of the
institution.- (1) The State Government shall,
by order published in the Official Gazette, take
over the management and control of the
institution.
(2) An order made under sub-section (1)
shall remain in force for a period of five years
from the date of its publication in the Official
Gazette or, in the case of acquisition of the
institution under Section 4, till the date of such
acquisition, whichever is earlier.
4. Acquisition of the institution.- (1) The
State Government may, if it so thinks fit, at any
time within the period of five years referred to
in sub-section (2) of section 3, acquire the
institution by notification.
(2) On and from the date of the notification
referred to in sub-section (1) (hereinafter
referred to as the date of vesting).-
(i) the institution shall stand transferred to, and vest
absec-lutely in, the State Government, free from
all encum-brances;
(ii) the institution shall be run by the State
Government as a State institution;
(iii) any contract, whether expressed or implied, or
other arrangement, whether made under any
statute or otherwise, in relation to the
management of any property or other affairs of
the institution, and in force immediately before
the date of vesting shall be deemed to have
terminated on and from the date of vesting;
(iv) every person (not being a part-time or over-aged
employee) who has been an employees of the
institution before the date of vesting shall, on
and from the date of vesting, become an
employee of the State Government and shall
hold office on the same terms and conditions as
would have been admissible to him if there had
been no such vesting and shall continue to do
so unless and until his employment under the
State Government is duly terminated or until
the terms and conditions of his service are duly
altered by the State Government by rules made
in this behalf;
Provided that the services of every person
who expresses his unwillingness to continue in
service in terms of the provisions of this clause
shall stand terminated with effect from the date
of vesting or from any other date to be notified
by him;
(v) notwithstanding anything contained in any law
for the time being in force or in any contract,
custom or usage, to the contrary, the transfer of
the service of any employee of the institution to
the service of the State Government shall not
entitle such employee to any compensation on
any account whatsoever and no claim in this
behalf shall be entertained by any court,
tribunal or authority."
17. In the facts of the present case, take over notification under
Section 3 of the Act of 1984 was issued on April 10, 1985. Under the
provisions of sub-section (1) of Section 4 of the Act of 1984, acquisition of
the institution is to be made within a period of five years referred to
under sub-section (2) of Section 3. Sub-section (2) of Section 3 allows an
order made under sub-section (1) of Section 3 to remain in force for a
period of five years from the date of publication in Official Gazette or in
case of acquisition of institution under Section 4 till the date of such
acquisition, whichever is earlier. In the facts of the present case,
notification under sub-section (1) of Section 4 for acquisition of
institution was issued on March 30, 1993 which is beyond the prescribed
period of five years under Section 3 of the Act of 1984.
18. If the acquisition is to remain valid it was required to be made
within five years from the date of publication of the notification under
Section 3 of the 1984. Five years from April 10, 1985 would mean Apirl
9, 1990. The father of the writ petitioners was in employment as a
permanent Lecturer at the Medical College and Hospital on such date.
The father of the writ petitioners was therefore to be considered as an
employee by operation of law under the Act of 1984. State cannot be
allowed to take benefit of its laches. It did not require the institution
within the prescribed period of five years from the date of take over. If it
did so then the father of the writ petitioners was an employee of the State
on the date of the acquisition with all attendant benefits.
19. In such circumstances, we find that the father of the writ
petitioners was entitled to retiral benefits as a permanent Lecturer of the
institution on his superannuation on March 1, 1991. He however, did
not claim for his retiral benefits till 2014 when he approached the
Tribunal.
20. Therefore, the State authorities will consider grant of retiral
benefits of the father of the writ petitioners, with his pension
commencing from three years prior to the date he approached the
Tribunal for his retiral benefits. It is clarified that, the claim for
pensionary benefits is only limited for the period of three years from the
date he approached the Tribunal. Other retiral benefits, are to be paid to
the father of the writ petitioners in full in view of the fact that the State
authorities are trustees of the retiral benefits of the father of the writ
petitioners, if there be any, subsequent to the take over and acquisition
of the institution under the provision of Act of 1984.
21. With the aforesaid observations, we dispose of WP.ST 93 of 2019
without any order as to costs.
(Debangsu Basak, J.)
22. I agree.
(Md. Shabbar Rashidi, J.)
CHC
