Delhi High Court
Naseem Ahmad vs The Ministry Of Defence And Ors on 1 February, 2021
$~S-89
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 1193/2021, CM APPLs. 3354-55/2021
NASEEM AHMAD .....Petitioner
Through: Mr. A.K. Bhardwaj, Advocate.
Versus
THE MINISTRY OF DEFENCE AND ORS .....Respondents
Through: Mr. Avnish Singh , Advocate
for UOI.
% Date of Decision: 01st February, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J: (Oral)
1. The petition has been heard by way of video conferencing.
2. Present writ petition has been filed challenging the order dated 03rd
November, 2020 passed by the Principal Bench of the Central
Administrative Tribunal in O.A. No. 1709/2020. Petitioner also seeks a
direction to the respondents to grant the terminal benefits such as monthly
pension, gratuity and leave encashment payable to the petitioner on pro-rata
basis with the arrears thereof along with interest.
3. Learned Counsel for the petitioner submits that the Tribunal passed
the impugned order rejecting the O.A. of the petitioner as barred by
limitation stating that the Tribunal had noted that the petitioner ought to
have pursued the matter as soon as the pension became due. The relevant
portion of the impugned order is reproduced herein below:-
4. We are aware of the fact that the right to receive pension
by an employee constitute a continuous cause of action. At
the same time, the claim presented 35 years after the
applicant left the organisation cannot at all be entertained,
whatever be the latitude shown by the Courts towards a
retired employee.
5. In case the applicant wan entitled to receive pension
from the MoD, he ought to have pursued the matter as soon
as it became due. He was in service of GAIL for about ten
years. Even during that time, the issue was required to be
settled. He retired from service in 1996. 25 years thereafter,
he started claiming pension from the MoD. Viewed from
any angle, the claim cannot be considered at this stage. The
only reason furnished by the applicant for condonation of
such a long delay is that he was posted outside Delhi. Even
if that is true, nothing prevented him from pursuing the
remedy over the past 35 years.
4. Learned counsel for the petitioner submits that the Tribunal should
have appreciated that the pension becomes due to a retiree every month and
the petitioner had taken up the matter with the authorities immediately.
5. Learned counsel for the petitioner states that the petitioner is a senior
citizen, who is suffering from health issues and is in dire need of funds for
his sustenance.
6. He further submits that the order of the Tribunal is contrary to the
view taken by the Supreme Court in S.R. Bhanrale Vs. Union of India &
Ors. (1996) 10 SCC 172 wherein it has been held that it is improper to plead
the bar of limitation against such claims of the employees when the Union
itself had defaulted in making the payments promptly when the same fell
due.
7. Issue notice.
8. Mr. Avnish Singh, learned counsel for the respondents accepts notice.
He states that the petitioner was not a regular employee of the Ministry of
Defence. He submits that if the petitioner has to claim any relief, it should
be from All India Radio and not from Ministry of Defence.
9. Having heard the counsel for the parties, this Court is of the view that
the right to receive pension by an employee constitutes a continuous cause
of action.
10. It is settled law that 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.
However, in such a case the consequential relief of recovery of arrears, the
Courts/Tribunals will restrict the same for a period of three years prior to the
filing of a petition. (See: Union of India & Ors. v. Tarsem Singh, (2008) 8
SCC 648)
11. Since the petition has been dismissed on the sole ground of limitation
and laches, the impugned order is set aside and the matter is remanded back
to the Tribunal for fresh consideration in accordance with the aforesaid
judgment of the Supreme Court.
12. Accordingly, the present writ petition along with pending applications
stand disposed of.
13. This Court clarifies that it has not expressed any opinion on the merits
of the controversy. All the rights and contentions of the parties are left open.
14. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
ASHA MENON, J
FEBRUARY 01, 2021
AS
