Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 553 (GAU)

Chandra Sekhar Bhowmik v. State of Tripura

2004-11-16

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. All the three writ petitions are based on same set of facts involving a scheme introduced by the State Govt. extending the incentive of two advance increments to its Grde-III and IV employees for attending offices during a strike period. Thus they were heard analogously and are being disposed of by this common judgment and order. 2. The Petitioners in C.R. No. 109/95 and C.R. No. 110/95 had been serving as Assistant Teacher under the Education Directorate at the relevant point of time in Charilam Higher Secondary School: The Petitioner in C.R. No. 171/95 was a Grade-IV employee and had been serving as such in Higher Secondary School from where she was transferred to Tripura Govt. Museum, Agartala by an order dated 01.03.75. Thus, the first two writ Petitioner were serving as Grade-III employees under the State Govt. while the third Petitioner was serving as Grade-IV employee under the State Govt. at the relevant point of time. All of them have since retired from service on attaining the age of superannuation. 3. A general strike was called by the Tripura govt. Employees Coordination Committee to press certain demands and the strike was to commence from 19.03.75 by remaining absent from duty. The Govt. of Tripura declared the continuous strike as illegal and all out efforts were made to thwart the same. 4. By an office memorandum dated 30.08.75, the Govt. of Tripura communicated its decision to grant two advance increments to the employees (Grade-III and IV) in their respective time scale of pay w.e.f. 23.03.75 for rendering service to the Govt. of Tripura during the period of continuous strike w.e.f. 19.03.75 to 31.03.75. As per the said office memorandum such benefit of two increment was also extended to the employees who in the meantime had reached maximum of their time scale of pay. The memorandum was issued pursuant to the decision of the Council of Ministers. 5. According to the Petitioners they did not participate in the said strike and an entry to that effect was made in the service books of the Petitioners in C.R. No. 109/95 and C.R. No. 110/95. The memorandum was issued pursuant to the decision of the Council of Ministers. 5. According to the Petitioners they did not participate in the said strike and an entry to that effect was made in the service books of the Petitioners in C.R. No. 109/95 and C.R. No. 110/95. However, so far as the Petitioner in C.R. No. 171/95 is concerned nothing could be brought on record except the statement made in the writ petition that she was present in the office for two days during the strike period, i.e. on 19.03.75 and 20.03.75. 6. One of the employees of the State Govt. being aggrieved by the aforesaid decision of the State Govt. to grant incentive to the non-striking employees, filed a suit bearing No. 185/75 in the court of the then Sadar Munsiff, Agartala. The suit was decreed holding that the decision was illegal, inoperative and unconstitutional. Pursuant to such decree passed by the learned Munsiff, Finance Department of the Govt. of Tripura by a memorandum dated 10.07.78 communicated the decision of the Govt. not to allow any advance increment. After protracted litigation the matter went up to the Supreme Court which set aside and quashed the decision of the learned Munsiff and so also the consequential decision of the Govt. of Tripura. 7. Pursuant to the said decision of the Apex Court rendered in February, 1992, the Govt. of Tripura in the department of Finance issued another memorandum dated 14.07.92 on the subject of granting of two advance increments to the non-striking Govt. employees intimating about the decision of the Apex Court. Pursuant to such memorandum dated 14.07.92, the Petitioners made a prayer to the Director of Education for extending the benefit of two advance increments. The representation made by the Petitioner in C.R. No. 109/95 was dully forwarded by the Head of the institution to the Director of Schools Education by letter dated 08.08.92. However, nothing was done in the matter and the efforts made by the Petitioner did not yield any result. Even after issuing demand notice through learned Counsel on 03.10.94 there was no response on the part of the Respondents and as a result the Petitioner approached this Court by filing C.R. No. 109/95. 8. However, nothing was done in the matter and the efforts made by the Petitioner did not yield any result. Even after issuing demand notice through learned Counsel on 03.10.94 there was no response on the part of the Respondents and as a result the Petitioner approached this Court by filing C.R. No. 109/95. 8. Likewise, the Petitioners in C.R. No. 110/95 also made representation for granting two advance increments and the same was forwarded by the Head of the Institution by letter dated 08.08.92. Like that of the first Petitioner he also did not get any response and eventually after failing to get redressal of his grievance even after issuance of demand notice on 03.10.94, he invoked the writ jurisdiction of this Court by filing C.R. No. 110/95. The Petitioner in C.R. No. 171/95 made a prayer to the Director of Education (Higher) through proper channel on 23.11.94 praying for the benefit of two advance increments. However, same having failed to evoke any response, she also approached this Court by filing the writ petition after serving demand notice on 12.01.95. 9. As against the plea of the Petitioners in C.R. No. 109/95 and 110/95 that they were present in their duties throughout the strike period, it is the case of the Petitioner in C.R. No. 171/95 that she was present in her duties for two days, i.e. on 19.03.75 and 20.03.75 which according to her fulfilled the condition precedent for getting the benefit of two advance increments. In this connection, the Petitioners placed reliance on the memorandum dated 23.04.75 issued by the Govt. of Tripura in the Education Directorate by which the Head of Offices in the department were requested to furnish proposal in respect of eligible Grade-III and IV employees and the employees appointed on consolidated pay of Rs. 150/- per month for granting the benefit of two advance increments. As per the said memorandum the decision of the Govt. was conveyed towards granting the said advance increments to the employees who had attended their duties from 19.03.75 to 22.03.75 despite the strike either continuously or any day between the said period. The Respondents in their affidavit filed against C.R, No. 171/95 have accepted the aforesaid stand of the Petitioners regarding entitlement of two advance increments for not participating in the continuous strike from 19.03.75 to 31.03.75 or remaining present in duty on any day between the said period. The Respondents in their affidavit filed against C.R, No. 171/95 have accepted the aforesaid stand of the Petitioners regarding entitlement of two advance increments for not participating in the continuous strike from 19.03.75 to 31.03.75 or remaining present in duty on any day between the said period. Such statements have been in paragraph 5 of the affidavit in opposition filed by the Respondents in C.R. No. 171/95. 10. Three separate affidavits have been filed in all the three petitions to which rejoinder has also been filed by the Petitioners in C.R. No. 109/95 and 110/95. 11. The stand in the affidavits are two folds. They are (i) the writ petition is barred by limitation, delay and latches and (ii) the Petitioners are not entitled to the benefit of two advance increments in absence of any proof of non-participation in the continuous strike. The Respondents have placed reliance on the decision of this Court on the common judgment and order dated 30.08.95 passed in C.R. Case No. 242/95 and others in which it was held that the scheme for two advance increments issued in 1975 cannot be directed to be implemented by filling writ petition in 1995 and the same was grossly belated. 12. In C.R. No. 109/95 it is the stand of the Respondents that the claim made in 1995 on the basis of the decision of 1975 is grossly belated. In C.R. No. 109/95 it is the further stand of the Respondents that there is nothing to indicate that the Petitioner attended his duties during the strike period. As regards the entry in the service book certifying such attendance of the Petitioners, it is the stand of the Respondents that the entry having been made in 1977, i.e. much after the strike period was not legally valid and that the same came to the notice of the Govt. after lapse of about 18 years just before the retirement of the Petitioner from service. However, as per the photocopy of the Attendance Register for the relevant month annexed to the affidavit in opposition, the Petitioner attended his duties on 9.03.75, 24.03.75, 25.03.75 and 31.03.75. As per the said register, the total number of days of absence during the strike period was four days. However, as per the photocopy of the Attendance Register for the relevant month annexed to the affidavit in opposition, the Petitioner attended his duties on 9.03.75, 24.03.75, 25.03.75 and 31.03.75. As per the said register, the total number of days of absence during the strike period was four days. Thus, it is the case of the Petitioner that even if it is held that the Petitioner did not attend his duties continuously during the strike period, he having attended his duties in between the strike period, he is entitled to the benefit of the two advance increments as per office memorandum dated 23.04.75. The same very pleas have been raised by the Respondents in their affidavit in respect of the case of the Petitioner in C.R. No. 110/95. As per the own showing of the Respondents by annexing a copy of the Attendance Register for the relevant month, the Petitioner had attended his duties on 19.03.75, 24.03.75, 25.03.75, and 31.03.75. In this case also like that of the Petitioner in C.R. No. 109/95, the Petitioner was shown to be absent for four days during the strike period which later on was adjusted as casual leave. 13. In the third writ petition, i.e. C.R. No. 171/95, it is the specific case of the Petitioner that she attended her duties on 19.03.75. Such a statement has been made by the Petitioner in paragraph 9 of the writ petition to which there is no categorical denial on the part of the Respondents in their affidavit. The specific assertion made by the Petitioner in paragraph 9 of the writ petition has not been dealt with by the Respondents in their reply made in paragraph 5 of the affidavit. In paragraph 5 the Respondents have only stated about the entitlement of the employees who had attended their office either continuously or on any day during the strike period. However, a statement has been made that no application/proposal was received from the Petitioner for granting the two advance increments in the year 1975 and thus, the case of the Petitioner could not be considered. It is the stand of the Respondents in their affidavit that the claim of the Petitioner that she was present in her duties on 19.03.75 and 20.03.75 could not be verified because of long delay. It is the stand of the Respondents in their affidavit that the claim of the Petitioner that she was present in her duties on 19.03.75 and 20.03.75 could not be verified because of long delay. However, it is not the stand of the Respondents that records are not available to verify the same. 14. Mr. M.N. Indu, learned Sr. Counsel assisted by Mr. R. Dutta, learned Counsel appearing for all the Petitioners strenuously argued that the Respondents ought to have extended the benefits of two advance increments to the Petitioners as per their own policy decision. As regards the delay in making the claim he submitted that the earlier decision of this Court in rejecting the claim of the employees who had approached this Court by filing independent writ petitions is not applicable to the facts and circumstances of the instant case and that no law as such has been laid down in the said decision of this Court. He submitted that there being no dispute that all the Petitioners attended their duties, at least for some days during the strike period, they are entitled to the benefit of two advance increments. 15. Mr. U.B. Saha, learned Sr. Govt. Advocate assisted by Mr. A. Ghosh, Advocate on the other hand placing reliance on the aforesaid decision of this Court, submitted that after the said decision nothing survives to be decided in the instant writ petition. He also submitted that there being no proof of attending duties by the Petitioners, they are not entitled to any relief. 16. It is in the aforesaid backdrop, submissions made by the learned Counsel for the parties and the materials available on record, this Court is called upon to answer the question as to whether the claim of the Petitioners is hit by the principle of delay and latches and if not, whether they are entitled to the benefit of two advance increments. 17. This Court in the aforesaid decision dated 30.08.95 in C.R. No. 242/95 and other such writ petitions found fault with the writ Petitioners in approaching the writ Court by filling writ petitions in 1995 claiming the benefits of two advance increments on the basis of the decision of the Council of Ministers in its meeting held on 23.03.75. 17. This Court in the aforesaid decision dated 30.08.95 in C.R. No. 242/95 and other such writ petitions found fault with the writ Petitioners in approaching the writ Court by filling writ petitions in 1995 claiming the benefits of two advance increments on the basis of the decision of the Council of Ministers in its meeting held on 23.03.75. It is not known as to whether the subsequent events relating to the issue, such as filling of a suit before the learned Munsiff and the Apex Court decision rendered in 1992 were brought to the notice of this Court. However, on perusal of the said judgment, it appears that those intervening factors were not brought to the notice of this Court. The decision of the Govt. of Tripura adopted in 1975 did not attain its finality and it was the subject matter of further proceeding before the learned Munsiff. As against the decree passed by the learned Munsiff, the matter went up to the Supreme Court and the Supreme Court by its judgment and order dated 27.02.92 in C.A. No. 2717/1979 interfered with the decree passed by the learned Munsiff and the consequent office memorandum dated 10.07.78 withdrawing the benefit of two advance increments. Thus the whole matter got revived with the passing of the judgment by the Apex Court on 27.02.92. In fact, the Respondents also issued memorandum dated 17.07.92, notifying the decision of the Apex Court and quashing of the earlier memorandum dated 10.07.78 withdrawing the benefit of two advance increments. Immediately thereafter the Petitioners made representations before the competent authority which were duly forwarded by their controlling officer. When the Petitioner did not get any response, they served legal notice on 03.10.95 and the same also having failed to evoke any response from the Respondents, they invoked the writ jurisdiction of this Court by filling the writ petitions. In such a situation, it cannot be said that the claim made by the Petitioners is hit by the principle of delay and latches or/and barred by limitation. 18. There is another aspect of the matter. The Petitioner agitated their grievance relating to non-payment of two advance increments as was promised by the Respondents by taking a Cabinet decision in 1975 and issuing circulars on that basis. 18. There is another aspect of the matter. The Petitioner agitated their grievance relating to non-payment of two advance increments as was promised by the Respondents by taking a Cabinet decision in 1975 and issuing circulars on that basis. It is on record that the Respondents called for reports from the controlling officers in respect of those employees who did not participate in the continuous strike. If the controlling officers did not furnish any report, the fault cannot be attributed to the Petitioners. It is also on record at least in respect of the first two writ Petitioners that immediately after issuance of memorandum dated 17.07.92 conveying the decision of the Apex Court dated 27.02.92, the Petitioners in C.R. No. 109/95 and 110/95 made representations through the controlling officers and the same were dully forwarded to the competent authority. Inaction on the part of the competent authority of the Respondents to examine the case of the Petitioners cannot give rise to a right for the Respondents to raise a plea of delay and laches in approaching this Court by the Petitioners. 19. In this connection, I may gainfully refer to the observations made by the apex court in the case of M.R. Gupta v. Union of India and Ors. as reported in (1995) 5 SCC 628 which reads as follows: The Tribunal misdirected itself when it treated the Appellant's claim as 'one time action, meaning thereby that it was not continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, as a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary that the employees is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with the rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the enquiry of redemption is extinguished. It is settled that the right of redemption is of this kind. See Thota Chiva Subha Rao v. Mattaplli Raju. It is settled that the right of redemption is of this kind. See Thota Chiva Subha Rao v. Mattaplli Raju. The learned Counsel for the Respondents placed strong reliance on the decision of this Court in S.S. Rathore v. State of Madhya Pradesh. That decision has no application in the present case. This was a case of termination of service and therefore, a case of one time action, unlike the claim for payment of correct salary according to the rules throughout the service giving rise to a fresh cause of action each time the salary was incorrectly computed and paid. No further consideration of that decision is required to indicate its inapplicability in the present case. 20. As in the aforesaid case, if the claim of the Petitioner that they were entitled to get the benefit of two advance increments added to the salary succeeds, a fresh cause of action continued to arise every month of receipt of salary by them due to nonpayment of said two advance increments to them and thus, the cause of action continued to survive till they were paid their salary without taking into account the said two advance increments. As noticed above, even otherwise also, the claim of the Petitioners cannot be said to be barred by limitation in view of the fact that the matter relating to granting of two advance increments, after protracted litigation attained its finality only in February, 1992 with the decision of the Apex Court and all the writ Petitioners after exhausting departmental remedy approached the writ Court in 1995. Thus it cannot be said that the writ petitions were filed belatedly. 21. This now leads us to the merit of the case. There is no dispute that Grade-III and IV employees of the Education Directorate were entitled to benefit of two advance increments in the event of their non participation in the continuous strike w.e.f. 19.03.75 to 31.03.75 either remaining present in duty throughout the period of strike or on any day during the strike period. All the three writ Petitioners, more particularly the Petitioner in C.R. No. 109/95 and C.R. No. 110/95 attended their duties at least on 19.03.75, 24.03.75, 25.03.75 and 31.03.75 which fact has even been admitted by the Respondents in their affidavit by annexing copies of the Attendance Registers for the relevant month. All the three writ Petitioners, more particularly the Petitioner in C.R. No. 109/95 and C.R. No. 110/95 attended their duties at least on 19.03.75, 24.03.75, 25.03.75 and 31.03.75 which fact has even been admitted by the Respondents in their affidavit by annexing copies of the Attendance Registers for the relevant month. If that be so, they will be entitled to the benefit of two advance increments as was promised by the Govt. of Tripura. 22. In the service books of the said two Petitioners remarks have been made certifying their attendance in office during the period of strike. It is true that such endorsement was made in 1977 by the controlling officer of the Petitioners, i.e. after two years of the period of strike. However, nobody has questioned the validity of the same and nothing has been brought on record to suggest that such entries have subsequently been withdrawn. The Respondents have simply made a statement in their affidavit relating to the alleged delay in making such endorsement in service books and that the same came to their notice after about 18 years. However, nothing has been stated in the affidavit as to whether such entries have been cancelled or not. Thus, entries made in the service book certifying presence of the Petitioners in their duties during the strike period remained undisturbed and the Petitioners have in the meantime retired from service on attaining the age of superannuation. Thus, on that count also I see no reasons as to why the Petitioners should not be extended with the benefits of the two advance increments which is Respondents themselves promised on the basis of a Cabinet decision and which has attained its finality with the passing of the order by the Apex Court in February, 1992. 23. As regards the specific assertion made by the Petitioner in C.R. No. 171/95 that she was present in her duties on 19.03.75 and 20.03.75, the Respondents except making a statement that such a claim could not be verified at a belated stage, have not denied the claim of the Petitioner. As per their own circular it was the duty of the controlling officer to furnish the particulars in respect of those Grade-III and IV employees who did not participate in the continuous strike or remaining present on any day during the period of strike. As per their own circular it was the duty of the controlling officer to furnish the particulars in respect of those Grade-III and IV employees who did not participate in the continuous strike or remaining present on any day during the period of strike. It is the definite case of the Petitioner that she was present in her duties on 19.03.75 and 20.03.75. After the decision of the Apex Court in February, 1992 she made her claim for getting the benefit of two advance increments. Nothing was communicated to her and now a plea has been raised in the affidavit that such a claim made by the Petitioner was grossly belated. It has already been held that the claim of the Petitioners is not barred by limitation and/or hit by the principle of delay and laches. 24. Unlike the first two writ Petitioners, the Respondents in the case of the Petitioner in C.R. No. 171/95, could not produce anything to nullify the claim of the Petitioner. Thus on both counts, i.e. no specific denial of the specific averments made by the Petitioners that she attended her duties on 19.03.75 and 20.03.75 and non production of records, the claim of the Petitioner deserves to be allowed. An adverse inference will have to be drawn against the Respondents in absence of any specific denial of the claim of the Petitioner. The Respondents cannot take the plea of inordinate delay in making the claim by the Petitioner when they themselves notified vide memorandum dated 17.7.92 about the decision of the Apex Court rendered in February, 1992 interfering with the decree passed by the learned Munsiff and the consequential memorandum dated 10.07.78 issued by the Govt. of Tripura withdrawing the benefits of two advance increments. The issue relating to granting of two advance increments got revived and the Respondents were duty bound to examine the case of the Petitioners on that basis. Unfortunately, to frustrate the claim of the Petitioners they have raised the plea of delay and laches on the part of the Petitioners unmindful of their own inaction in the matter. 25. For the foregoing reasons and discussions, all the three writ petitions succeed. The Respondents are directed to extend the benefit of two advance increments to the Petitioners involved in this writ proceedings as per their own policy decision. 25. For the foregoing reasons and discussions, all the three writ petitions succeed. The Respondents are directed to extend the benefit of two advance increments to the Petitioners involved in this writ proceedings as per their own policy decision. The Petitioners with the granting of two advance increments added to their salary from the due date, will be entitled to consequential benefits including the pensionary benefits on that basis. 26. The writ petitions stand allowed leaving the parties to bear their own costs. 27. Before parting with the case records, I make it clear that the benefits which the Petitioners will now get in terms of this judgment and order will not be applicable to other Grade-III and IV employees who have not approached this Court, meaning thereby that this judgment and order will only confine to the case of the Petitioners and will not be applicable to other Grade-III and IV employees who might feel that they are similarly situated like that of the Petitioners but have not approached this Court unlike the Petitioners who initiated the writ proceedings by invoking the writ jurisdiction of this Court way back in 1995. I have adopted such an approach in tune with the approach adopted by the Apex Court in the case of Miss Nilima Changla v. State of Haryana and Ors. as reported in (1986) 4 SCC 268 . In that case the Apex Court issued direction for inclusion of the name of the Petitioner in the select list in question. Although few more candidates would have been entitled to be included in the select list and could have been directed to be so included, the Apex Court in that case made exception confining the order to the Petitioner alone. Such a course of action was adopted having regard to the fact that most of the candidates did not choose to challenge the selection in question and that more than two years had elapsed. The Apex Court in that case did not make any general order to avoid inconvenience to the authority. It also held that those who did not question the selection list would not be able to do so in future because of their laches. 28. The Apex Court in that case did not make any general order to avoid inconvenience to the authority. It also held that those who did not question the selection list would not be able to do so in future because of their laches. 28. Applying the above principle as was adopted by the Apex Court in the case of Miss Nilima (supra), it is also held that the benefits extended to the Petitioners in the instant cases shall not be considered to have general application and shall confine to the Petitioners alone. Those who did not approach this Court in time like that of the Petitioners will not be entitled to the benefits of this judgment and for that matter the benefits of two advance increments.