Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Non-payment Of Pension Constitutes A Continuing Wrong.
JUDGEMENT TITLE : Ravindra Nath Shukla Vs. State Of U.P. And 2 Ors. On 02/15/2016 By Allahabad High Court
CASE NO : SPECIAL APPEAL DEFECTIVE NO. 92 OF 2016
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Yashwant Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Chief Justice's Court

Case :- SPECIAL APPEAL DEFECTIVE No. - 92 Of 2016

Appellant:- Ravindra Nath Shukla

Respondents:- State Of U P & 2 Ors

Counsel For Appellant :- Santosh Kumar Tripathi

Counsel For Respondents:- CSC, Vivek Varma


Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice
Hon'ble Yashwant Varma, J

(By The Court)
The Father Of The Appellant Is Stated To Have Been An Assistant Teacher In DPS Nagar Nigam Inter College, Nawabganj, Kanpur Nagar. The Institution Is Run And Managed By The Nagar Mahapalika, Kanpur. Upon His Retirement, The Father Of The Appellant Is Stated To Have Been In Receipt Of Pension And He Died On 6 June 1980. According To The Appellant, His Mother (the Widow Of The Deceased Employee) Filed An Application Before The  Accounts Officer Of The Nagar Mahapalika On 6 August 1980. Thereafter, It Is Stated That She Had Filed An Affidavit Before The Commissioner, Nagar Nigam, Kanpur On 14 December 2010 And On 17 October 2011 Submitted Her Grievance. On 13 March 2015, The Principal Of The Institution Called Upon The Appellant's Mother To Submit A Succession Certificate From The Competent Court. To This, She Is Stated To Have Filed A Reply On 4 May 2015 Seeking Details Of The Amount So That A Succession Certificate Could Be Obtained. Eventually, The Mother Of The Appellant Died On 9 May 2015, After Which The Appellant Moved Representations Before The Commissioner Of The Nagar Nigam. In His Writ Petition, The Appellant Sought The Release Of Family Pension In Favour Of His Mother Between 7 May 1980 And 8 May 2015 Together With Interest.
The Learned Single Judge Dismissed The Writ Petition On The Ground That It Was Barred By Laches Since, During Her Lifetime, The Appellant's Mother Had Not Made Any Claim Nor Had She Approached The Court For Relief. The Learned Single Judge Has Held That After Her Death, The Appellant Is Claiming Pension After 35 Years Of The Death Of His Father.
We Are Of The View That The Learned Single Judge Has Erred In Dismissing The Writ Petition For The Grant Of Family Pension On The Ground Of Laches. The Principle Of Law Has Been Laid Down By The Judgment Of The Supreme Court In Union Of India Vs Tarsem Singh1, To The Effect That In Cases Of Continuing Or Successive Wrongs, Delay And Laches Or Limitation Will Not Thwart The Claim So Long As The Claim Does Not Disturb Rights Of Third Parties Which May Have Come To Be Created In The Meantime. This Judgment Has Been Followed In A More Recent Judgment Of The Supreme Court In Asger Ibrahim Amin Vs Life Insurance Corporation Of India2. Reiterating The Principles Laid Down In Tarsem Singh, The Supreme Court Held As Follows:
"4. As Regards The Issue Of Delay In Matters Pertaining To Claims Of Pension, It Has Already Been Opined By This Court In Union Of India V. Tarsem Singh, (2008) 8 SCC 648:2008 (6) AWC 6434 (SC), That In Cases Of Continuing Or Successive Wrongs, Delay And Laches Or Limitation Will Not Thwart The Claim So Long As The Claim, If Allowed, Does Not Have Any Adverse Repercussions On The Settled Third-party Rights. This Court Held:
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. (Emphasis Is Ours)
We Respectfully Concur With These Observations Which If Extrapolated Or Applied To The Factual Matrix Of The Present Case Would Have The Effect Of Restricting The Claim For Pension, If Otherwise Sustainable In Law, To Three Years Previous To When It Was Raised In A Judicial Forum. Such Claims Recur Month To Month And Would Not Stand Extinguished On The Application Of The Laws Of Prescription, Merely Because The Legal Remedy Pertaining To The Time Barred Part Of It Has Become Unavailable. This Is Too Well Entrenched In Our Jurisprudence, Foreclosing Any Fresh Consideration."

In A Matter Relating To The Claim Which The Appellant Seeks To Assert In Regard To The Non-payment Of Family Pension To His Mother, Prior To Her Death In 2015, The Learned Single Judge Erred In Dismissing The Petition On The Ground Of Laches. Non-payment Of Pension Constitutes A Continuing Wrong. However, It Would Be Open To The Learned Single Judge, If The Claim Is Otherwise Sustainable, To Restrict The Grant Of Relief To An Appropriate Period Prior To The Filing Of The Writ Petition. The Learned Single Judge Has Not Considered The Merits Of The Claim. We Clarify That We Are Not Recording Any Opinion Thereon Which Is Still Subject To Due Verification Since A Counter Affidavit Had Not Been Filed.
Accordingly, We Allow The Special Appeal And Set Aside The Impugned Judgment And Order Of The Learned Single Judge Dated 12 August 2015. Writ - A No 44940 Of 2015 Is Restored To The File Of The Learned Single Judge For Disposal Afresh.
The Special Appeal Is Accordingly Disposed Of. There Shall Be No Order As To Costs.
Order Date :- 15.2.2016
AHA
(Dr D Y Chandrachud, CJ)

(Yashwant Varma, J)    

Chief Justice's Court

C M (Delay Condonation) Application No 32950 Of 2016
Re:

Case :- SPECIAL APPEAL DEFECTIVE No. - 92 Of 2016

Appellant :- Ravindra Nath Shukla
Respondent :- State Of U.P. And 2 Ors.
Counsel For Appellant :- Santosh Kumar Tripathi
Counsel For Respondent :- C.S.C.,Vivek Varma

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

The Delay Of 140 Days In Filing The Special Appeal Is Condoned Since Sufficient Cause Has Been Shown In The Affidavit Filed In Support Of The Application For Condonation Of Delay.
The Application Stands Disposed Of. There Shall Be No Order As To Costs

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