Narayan Dutt Punera vs State Of Uttarakhand And Others
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           IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                            Writ Petition (S/S) No. 875 of 2019

Narayan Dutt Punera                                                          ........Petitioner

                                                Vs.
State of Uttarakhand and others                                              .....Respondents

Present:
            Mr. Harendra Belwal, Advocate for the petitioner.
            Mr. N.P.Sah, Standing Counsel for the State.

                                        JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The instant writ petition has been preferred seeking the following reliefs:-

"(a) issue a writ, order or direction in the nature of certiorari quashing the order dated 07.02.2019 passed by respondent no.4.

(b) issue a writ, order or direction in the nature of mandamus commanding the respondents to recalculate and release the Gratuity in favour of the petitioner on the basis of the last drawn salary.

(c) issue a writ, order or direction in the nature of mandamus commanding the respondents to award 10% interest per annum on the amount of the Gratuity in pursuance of the notification dated 01.10.1987 in favour of the petitioner.

(d) issue any suitable order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.

(d) award the cost of the writ petition to the petitioner."

2. Heard learned counsel for the parties and perused the record.

3. It is the case of the petitioner that he was appointed in the Forest Department on daily rate basis in the year 1975. Subsequently his services were regularized on 09.01.2004. He retired on 31.12.2010. When his retiral dues were not paid, the petitioner was forced to file WPSS No. 4060 of 2018, which was decided on 05.12.2018 and various

directions were given to the respondents to decide the representation filed by the petitioner in view of the law laid down by the Hon'ble Supreme Court in the case of "Netram Sahu vs. State of Chhattisgarh & Another", (2018) 5SCC 430. It is the case of the petitioner that despite directions of the Court passed in WPSS No. 4060 of 2018, the services rendered by the petitioner prior to his regularization in the service have not been counted for the purpose of a gratuity, and he has not been paid the entire amount of gratuity. It is also submitted that the case is squarely covered by the judgment of this Court passed in WPSS No.1967 of 2018, Mohan Ram vs. State of Uttarakhand which was decided on 10.12.2018. The judgment was subsequently confirmed in Special Appeal No. 771 of 2019.

4. Initially, when the matter was taken up on the last occasion objection was raised on behalf of the State that the writ is delayed, and it is affected with the laches and delays. Learned counsel for the petitioner cited the principles governing delays and laches, and would argue that since the right or interest of no other person is being affected in case relief is granted, there is no question of delay and laches. Reliance is also placed on the law laid down in the case of Union of India & others vs. Tarsem Singh (2008) 8SCC 648 where the Hon'ble Court observed " 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".

5. During the course of arguments, learned State Counsel admits that this matter is covered by the judgment in the case of Mohan Ram (supra). But he continued to argue and further submits that this fact is admitted in the counter affidavit filed by the State also. It appears that the learned State Counsel is little hesitant to give a statement that the matter is covered by the judgment of this Court in the case of Mohan

Ram (supra). In fact, learned counsel for the State has raised objections on the ground of delay and laches also.

6. This is second round of litigation. Petitioner had earlier approached this Court seeking retiral dues which, as stated, has been decided by the Court 10.12.2018 with certain directions. This Court proceeds to decide this case.

7. There are two issues (i) As to whether the petitioner is entitled to get his service, rendered prior to regularization, counted for the purpose of payment of gratuity and (ii) Is the writ not maintainable because of delay and laches in filing?

8. Reference has been made to the judgment in the case of Netram Sahu (supra). In the case of Netram, similar controversy was involved where service of an employee, as daily wager for 22 years, were not counted for the purposes of gratuity, and only services rendered for 3 years as regular employee were counted. The Hon'ble Supreme Court in Para 18 observed as hereunder :-

" 18. It was indeed the State who took 22 years to regularize the service of the appellant and went on taking work from the appellant on payment of a meager salary of Rs.2776/- per month for 22 long years uninterruptedly and only in the last three years, the State started paying a salary of Rs.11,107/- per month to the appellant. Having regularized the services of the appellant, the State had no justifiable reason to deny the benefit of gratuity to the appellant which was his statutory right under the Act. It being welfare legislation meant for the benefit of the employees, who serve their employer for a long time, it is the duty of the State to voluntarily pay the gratuity amount to the appellant rather than to force the employee to approach the Court to get his genuine claim".

(emphasis supplied)

9. In the case of Mohan Ram (supra), this Hon'ble Court in fact, squarely dealt with the controversy and quoted extensively from the

judgment in the case of Netram Sahu (supra). The facts are similar, and the question of law involved is also similar. This Court is of the considered view that the controversy has already been decided in the case of Mohan Ram (supra) and this case is squarely covered by it.

10. The Court is unable to comprehend as to what prevented the State to admit this fact. In fact, there is no categorical assertion as well, as to why it is not identical to the issue as decided in the case of Netram Sahu (supra) or in the case of Mohan Ram (supra). This Court is constrained to observe that had the State admitted the legal position at the very threshold, perhaps, this petition would not have travelled so far in the Court, and it would have been decided on the day when it was filed. Unfortunately, it was not done. This Court leaves it at it.

11. In fact, in the case of Netram Sahu (supra) the Hon'ble Supreme Court interpreted the provisions of the Payment of Gratuity Act, 1972, especially section 2A, and observed as under: -

"16. once the State regularized the services of the appellant while he was in State services, the appellant became entitled to count his total period of service for claiming the gratuity amount subject to his proving continuous service of 5 years as specified under Section 2A of the Act which, in this case, the appellant has duly proved".

12. Next question which has been raised on behalf of the State is delay and laches on the part of the petition. Can a claim, like the instant one, be denied on the ground of delay and laches? The jurisdiction of this Court is to be exercised under Article 226 of Constitution of India. In the case of M.R. Gupta vs. Union of India & others (1995) 5SCC 628, the Hon'ble Supreme Court observed that the issue regarding pay fixation is a continuing wrong against him which gave rise to a recurring cause of action each time salary is paid. In the case of Tarsem Singh, (supra) the Hon'ble Supreme Court summarized the position of delays and laches,

especially in a case when pensionary reliefs are sought. In para-7, the Hon'ble Supreme Court observed as hereunder:-

"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 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. 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".

(emphasis supplied)

13. Petitioner in the instant case does not claim for pension. This claim is with regard to gratuity. On an earlier petition, directions were issued to the State Government in the year 2018 to consider the representation of the petitioner. Petitioner is not a person who was sleeping over his claim. The claim has never become stale. He has been throughout agitating it. The gratuity for total length of service has been denied by the impugned order dated 07.02.2019. In internal page 3, the officer records that since the writ petition is filed after eight years, it is not legally maintainable. The officer has observed about the order of this Court in WPSS No. 4060 of 2018, Mohan Ram vs. State of Uttarakhand. Perhaps the order of this Court dated 10.12.2018, passed in the case of Mohan Ram (supra) had two ways to be dealt with namely (i) to follow

it or (ii) to challenge it. But, an officer, who was required by this Court, to consider the representation, had no jurisdiction to sit in appeal over the order of this Court and observe that the petition was not legally maintainable. The Court leaves it at it. As stated the instant case is covered by the judgments in the cases of Netram Sahu (supra) and Mohan Ram (supra).

14. In view of the above, the petition is allowed. The impugned order is set aside. The services as rendered by the petitioner prior to regularization shall also be counted for computing the amount of gratuity. The gratuity shall be paid along with statutory interest.

(Ravindra Maithani, J.) 16.03.2021

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