Orissa High Court
Trilochan Jena vs State Of Odisha & Others on 24 June, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WA No.143 of 2021
Trilochan Jena .... Appellant
Ms. S. Das, Advocate
-versus-
State of Odisha & Others .... Opposite Parties
Mr. L. Samanrtaray, A.G.A
CORAM:
THE CHIEF JUSTICE
JUSTICE S.K. PANIGRAHI
ORDER
Order No. 24.06.2021
02. 1. This matter is taken up by video conferencing mode.
2. The challenge in the present Appeal is to an order dated 9th
September, 2020 passed by the learned Single Judge declining to
entertain the Appellant's writ petition W.P. (C) No. 9828 of 2020
on the ground of delay and laches.
3. The prayer in the aforementioned writ petition was for a
direction to Opposite Party No.3 i.e. Principal Accountant General,
Orissa to provide the Petitioner minimum pension within a
stipulated period by setting aside the refusal order dated 9th
September, 1994 issued by Opposite Party No.3.
4. The learned Single Judge in the impugned order has computed
the limitation period for the purpose of laches from 9th September,
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1994 and has on that basis observed that the petition was filed after
26 years.
5. This Court has heard the submissions of Ms. Shradha Das,
learned counsel for the Appellant and Mr. L. Samantaray, learned
AGA for the Respondent State.
6. It is pointed out by Ms. Das that the writ petition in which the
impugned order was passed by the learned Single Judge was the
Appellant's second writ petition in this Court. Indeed, it transpires
that the Appellant had in fact approached this Court first by filing
W.P. (C) No. 3021 of 2004. After the said petition had been
pending in this Court for 14 long years an order was passed on 18th
December, 2018 by the learned Single Judge disposing of the
petition by relegating the Appellant to the Orissa Administrative
Tribunal (OAT). As the OAT was abolished with effect from 19th
August, 2019, the Appellant was constrained to file another writ
petition, W.P. (C) No. 9828 of 2020, for the second time before
this Court. This was filed without any necessary delay on 16th
March 2020, within a few months of the abolition of the OAT.
7. In that view of the matter, it cannot be said that the second
petition was delayed by 26 years. Moreover, the Union of India v.
Tarsem Singh (2008) 8 SCC 648, the Supreme Court has observed
that in the matter of pension the rule of delay and laches should not
be rigidly applied. The following observations in para 7 of the said
judgment are relevant:
"To summarise, normally, a belated service related
claim will be rejected on the ground of delay and
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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 re-opening 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 re-fixation 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. In
so far as the consequential relief of recovery of
arrears for a past period, the principles relating to
recurring/successive wrongs will apply. As a
consequence, 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." (emphasis supplied)
8. In that view of the matter, the impugned order dated 9th
September, 2020 is set aside and W.P. (C) No. 9828 of 2020 is
restored to the file of the learned Single Judge. It shall be listed
before the learned Single Judge in the roster Bench for directions
on 19th July, 2021.
9. The learned Single Judge is requested to take up the said writ
petition for hearing and endeavour to dispose it of within a period
of four months thereafter.
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10. The writ appeal is disposed of accordingly.
11. As the restrictions due to resurgence of COVID-19 situation
are continuing, learned counsel for the parties may utilize a
printout of the order available in the High Court's website, at par
with certified copy, subject to attestation by the concerned
advocate, in the manner prescribed vide Court's Notice No.4587,
dated 25th March, 2020 as modified by Court's Notice No.4798,
dated 15th April, 2021.
(Dr. S. Muralidhar)
Chief Justice
(S.K. Panigrahi)
Judge
Sangita Patra/
Lingaraj Behera
