A.K.Mitra Deceased Thr Rajni ... vs Uoi And Ors
2015 Latest Caselaw 7193 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgement delivered on: 21st September, 2015

+             Rev. P. No.176/2015 in WP(C) No.9184/2006


A.K.MITRA DECEASED THR RAJNI MITRA
                                                          ..... Petitioner
                              Represented by: Mr. Gaurav Gupta, Adv.
                              versus
UOI AND ORS
                                                            ..... Respondents
                              Represented by:     Mr. Amit S. Chadha, Sr.
                                                  Adv. with Ms. Sangeeta
                                                  Mandal, Mr. Kunal Sinha
                                                  and Mr. Dilpreet Singh,
                                                  Advs. for R2 and R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT


SURESH KAIT, J.

Rev. P. No.176/2015 & C.M.No.4860/2015 (For delay of 941 days)

1. Vide the present petition, petitioner widow of deceased A. K. Mitra seeks review of the judgment dated 03.07.2012 passed by this Court in WP (C) No.9184/2006.

2. Mr.Gaurav Gupta, learned counsel appearing on behalf of petitioner submitted that deceased husband of petitioner filed the WP (C) No.9184/2006 whereby sought directions against the respondents for payment of arrears of gratuity entitled on actual payment of salary,

amounting to Rs.3.00 Lac approximately with interest @ 18% per annum from the date of accrual of right till the date of payment. Further also sought directions to issue payment of pension from the Provident Fund Authority (Kolkata) under EPS-95. Thus, the petitioner sought gratuity and pension accordingly.

3. He further submitted that on both the issues the deceased husband of the petitioner, who was appearing in person argued before this Court, however vide judgment dated 03.07.2012, this Court granted the relief in following terms:-

"44. Accordingly, in view of the above discussion, respondents are directed to calculate the gratuity of the arrear as applicable as per the Central 5th Pay Commission and disbursed the same to the petitioner within four weeks from today.

45. Since the petitioner has been agitated this issue continuously with the respondents and there is no fault of him, therefore, interest thereon @ 8% would also be paid accordingly.

46. If the respondents failed to pay the above directed amount within the period mentioned above, then the petitioner shall be entitled to further interest @ 4% till the realization of the same."

4. Mr.Gupta, submitted that this Court has not given its opinion on the issue of pension, therefore, present petition may be allowed.

5. It is not in dispute that deceased petitioner challenged the aforesaid judgment vide LPA No.629/2012 which was disposed by passing the order on 12.09.2012 as under:-

"In this appeal, the appellant states that he had, apart from gratuity, also claimed pension but that issue is not decided by the learned Single Judge. However, when the appeal is taken up for hearing, the appellant submitted that he does not want to press the relief for pension and wants to withdraw this appeal.

Appeal is dismissed as withdrawn. The appellant states that he has some more grievances. Since those were not the subject matter of the writ petition, he shall be entitled to seek appropriate remedy therefor."

6. Learned senior counsel Mr.Amit S Chadha appearing on behalf of respondents submitted that in the appeal filed by the deceased petitioner, he gave up the relief for pension and withdrew the said appeal. The aforesaid order has attained finality and during his lifetime, deceased petitioner did not challenge the same. Therefore, the present petition is not maintainable.

7. On perusal of the order dated 12.09.2012 passed in LPA No.629/2012, the deceased petitioner gave up his relief for pension and accordingly, withdrew the said appeal. Thereafter, petitioner expired on 23.10.2013 after passing one year of the dismissal of his LPA mentioned above.

8. It is also not in dispute that WP (C) No.1456/2014 was filed by the present petitioner i.e. wife of deceased A K Mitra and same was withdrawn with liberty to take recourse to appropriate remedy. Hence, the present review petition.

9. The fact remains is that deceased A K Mitra challenged the

judgment dated 03.07.2012 in LPA No.629/2012 on the ground that this Court granted the relief only qua the gratuity, however, not given any opinion on his entitlement for pension. But, the relief of pension was given up by him in LPA noted above and withdrew the said appeal as is evident from the order dated 12.09.2012. It seems that deceased petitioner was satisfied with the judgment dated 03.07.2012. Therefore, if the order dated 12.09.2012 was not properly recorded, he could have move the application for review of the same for appropriate order, to which he failed to do.

10. It is pertinent to mention that respondents also filed an appeal being LPA No.623/2012 against the judgment dated 03.07.2012 passed in WP (C) No.9184/ 2006, which was also dismissed on 10.09.2012. Thereafter, on 12.09.2012, the deceased petitioner withdrew his appeal by giving up the relief for pension and thereafter, he did not challenge the same till his death on 23.10.2013. It can also not be believed that deceased petitioner did not understand the intricacy of the order passed in LPA filed by him, because throughout the litigation he appeared in person, contested the case and consequently succeeded in his petition.

11. In view of above, I do not find any ground to review the judgment dated 03.07.2012 passed by this Court.

12. Moreover, the present petition is filed with delay of 941 days without showing any sufficient cause to condone such inordinate delay in filing this petition.

13. Consequently, instant Review Petition and delay application is

hereby dismissed on merit and delay as well with no order as to cost.

SURESH KAIT, J

September 21, 2015 M