- (1.) IN this writ petition the only issue that arises for consideration is whether the claim of interest made after 10 years on the delayed payment of retiral benefits ought to be allowed.
(2.) COUNSEL for the petitioner contends that it is an admitted position that the petitioner retired on 31st January, 2000 and the pension payment order was issued on 16th January, 2002 and within two months of the issuance of the pension payment order that is on 26th March, 2002 the retiral benefit was paid to the petitioner. As the petitioner was entitled to payment of retiral benefits forthwith or maximum within a period of 30 days and admittedly, the said was not done the petitioner is entitled to payment of interest on and from the date of retirement till payment was made to the petitioner in March, 2002. The contention of the respondent authorities is that in view of Section 3 of the Limitation Act which entitles a person to seek remedy within three years from the date, the cause of action arose, in the instant case the cause of action arose in 2002 and the application has been filed after 10 years therefore on the ground of delay alone this application be dismissed. The judgment delivered by J. Bhattacharya, J. on 9th February, 2012 and reported in 2012 (1) WBLR (Cal) 903 is distinguishable as the issue of delay was not considered in the said judgment. To claim interest after 10 years, the petitioner must show and establish his right which is a continuing right as has been held in (2007) 15 SCC 627. In the instant case, the petitioner has not established his right to interest within the period of limitation. Therefore, he will not be entitled to claim payment of interest at this belated stage. (2008) 3 SCC 44 relied on by J. Bhattacharya, J. in his judgment was not a case wherein the issue of delay was considered. It was a case with regard to entitlement of interest and there is no dispute that the petitioner is entitled to payment of interest, but the question is will he be entitled to such interest beyond the period of limitation. (2008) 8 SCC 648 so also (2009) 1 SCC 168 were relied on by the petitioner before J. Bhattacharya, J. In fact, in view of decisions reported in (2011) 5 SCC 394, (2011) 3 SCC 436, (2010) 6 SCC 1, (2011) 1 WBLR 486, (2010) 12 SCC 538, (2005) 13 SCC 161, (2006) 9 SCC 630 and (2011) 2 SCC 94, this application merits no order. In (1988) 2 SCC 580 the test for a continuing wrong has been laid down and the said test be applied to the facts of this case. In opposing the issue of delay counsel for the writ petitioner has submitted that (2011) 5 SCC 394 is distinguishable on facts as the case related to a Land Acquisition proceeding wherein third party rights were created and status quo ante could not be restored, such is not the case here. Similarly (2011) 3 SCC 436 is distinguishable as the State was represented which agreed to make payment of interest and it is not a case of a wrong order. In fact although the issue of delay was raised and considered there is no finding in respect thereof and the case was decided on merits. (2008) 3 SCC 44 was a case of interest and not delay and the only reason for placing reliance on the said judgment by J. Bhattacharya, J. was for the purpose of highlighting that interest was a fundamental right. Interest on interest has never been granted and (2008) 8 SCC 648 aids the petitioner. There is no dispute with the proposition laid down in (2009) 1 SCC 168, (2010) 6 SCC 1 and (2010) 12 SCC 538. In the case of (2005) 13 SCC 161 there was no cut off date for interest while in (1988) 2 SCC 580 there was a cut off date. (2006) 9 SCC 630 is inapplicable to the facts of this case and (2011) 2 SCC 94 is accepted on principle. (2011) 1 WBLR Cal. 486 is relied on as it aids the petitioner and although the issue of interest was dealt with the question of delay did not arise for consideration. (2007) 1 CLJ 21, (2008) 8 SCC 44 and (2007) 15 SCC 627 were all allowed on merits therefore it is distinguishable on facts. AIR (1992) SCW 3181 be considered. In fact, in (2007) 3 Calcutta Law Times 531 delay was considered and therefore no reason exists to reject the claim for interest. The State in case overburdened though no such plea has been taken is entitled to recover sums from the delinquent officers therefore interest be paid.
(3.) IN reply counsel for the State respondents submits that the entitlement to interest may be a fundamental right and can be invoked at any time as generally fundamental right is not bound by any restriction and is uncontrolled. Delay and limitation are synonymous terms and although Section 3 of the Limitation Act is not to apply to writ proceedings, the principle of delay can be considered. (2011) 1 WBLR Cal. 486 is distinguishable on facts as delay was not in issue. (2008) 3 SCC 44 for the same reason is also distinguishable. (2007) 1 CLJ 21 was a case of custodial death and delay was being considered in that context therefore the said decision is distinguishable. AIR (1992) SCW 3181 is also distinguishable and the delay issue in the light of the decisions cited by the State respondents be considered. Having considered the submissions of the parties there is no reason to doubt the entitlement of the petitioner to payment of interest but whether such interest can be claimed after 10 years is the issue which has arisen for consideration. One of the grounds on which the petitioner would be entitled to interest on delayed payment of retiral benefits would be if the same constituted a continuing wrong. To constitute a continuing wrong a fresh wrong must be committed everyday to give rise to a cause of action de die in diem. The injury caused must be continuing. If the wrongful act causes an injury which is complete there is no continuing wrong even though the damage resulting from the act may continue as held in AIR (1959) SC 798 and followed in (2008) 8 SCC 648. In the instant case in refusing to make payment to the petitioner on retirement a wrong was committed and an injury caused. On payment the right of the petitioner to receive payment forthwith was completely injured and damage caused by such injury continued. But it cannot be said that the wrongful act was continuing to give rise to a cause of action de die in diem. The petitioner after 10 years is seeking to avail of such damage caused by the injury, therefore (2008) 8 SCC 648 will not apply to the facts of this case, as it was a case of a recurring wrong.;