- (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 (Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr, 2005 2 SCC 673) and (A.R. Antulay v. R.S. Nayak & Anr, 1988 2 SCC 602).
(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 (Subramanian Swamy & Ors. v. Raju, 2014 8 SCC 390), (Hari Chand & Ors. v. Faridabad Complex Administration & Ors, 2005 4 SCC 592). He relies upon (Vijay Narayan Thatte & Ors. v. State of Maharashtra & Ors, 2009 9 SCC 92) and submits that, when there is a conflict between law and equity, law must prevail.;