DEBANGSU BASAK,J. - (1.) The writ petitioner claims interest on delayed payment of gratuity.
(2.) Learned Government Pleader appearing for the State submits that the State is not liable to pay interest on the delay in payment of gratuity. He contends that, the issue of liability to pay interest for delayed payment of gratuity has to be seen in the context of the various provisions of the West Bengal Non-Government Aided Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981 as well as the West Bengal Services (Revision of Pay and Allowance) Rules, 2009 (ROPA). He submits that, the revision of pension/family pension and gratuity payable to pensioners under the West Bengal Non-Government Aided Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981 does not allow payment of interest for delay in payment of pensionary benefit. Alternatively he submits that, the date for commencement of grant of interest should depend upon the fact scenario of each case and not May 19, 2009 as directed earlier by this Court. Referring to the various orders passed from time to time by this Court granting interest on delayed payment of gratuity he submits that, those orders did not take into consideration the provisions of ROPA 2009 and, therefore, such orders should be construed to be per incurium. On the issue of per incurium he relies upon 2005 Volume 2 Supreme Court Cases page 673 (Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr.) and 1988 Volume 2 Supreme Court Cases page 602 (A.R. Antulay v. R.S. Nayak and Anr.).
(3.) The Government Pleader submits that, since the earlier orders directing payment should be construed to be per incurium, therefore, the principles of res judicata would not apply. On the issue of res judicata he relies upon 2014 Volume 8 Supreme Court Cases page 390 (Subramanian Swamy and Ors. v. Raju), 2005 Volume 4 Supreme Court Cases page 592 (Hari Chand and Ors. v. Faridabad Complex Administration and Ors.). He relies upon 2009 Volume 9 Supreme Court Cases page 92 (Vijay Narayan Thatte and Ors. v. State of Maharashtra and Ors.) and submits that, when there is a conflict between law and equity, law must prevail.;