WP(C)/192/2016 of SHYAMALI DEY DEB Vs THE STATE OF TRIPURA and ORS on 16 December 2016

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

2. The Director of Industries, Government of Tripura, Khejur Bagan, Kunjaban, Pin: 799006, District: West Tripura

…..... Respondents

WP(L). No. ZUo of ZUIb

Smti. Kajal Rani Sutradhar, wife of late Manindra Chandra Sutradhar resident of Gakulpur, Udaipur, P.O. Radhakishorepur, Udaipur, District: Gomati Tripura

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

2. the Director of Industries,

Smt. Sukla Roy Barman, wife of late Makhanlal Roy Barman, resident of Gakulpur, Udaipur, P.O. Radhakishorepur, Udaipur, District: Gomati Tripura

………Petitioner

- V E R S U S -

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

2. The Director of Industries, Government of Tripura, Khejur Bagan, Kunjaban, Pin: 799006, District: West Tripura

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Smt. Usha Rani Sutradhar, wife of late Sukumar Chandra Sutradhar, resident of Barabhaiya, P.O. Bagma, P.S. R. K. Pur, Udaipur, District: Gomati Tripura

………Petitioner

- V E R S U S -

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

2. The Director of Industries, Government of Tripura, Khejur Bagan, Kunjaban, Pin: 799006, District: West Tripura

Smt. Kalpana Rani Barik, wife of late Babul Barik, resident of Dhajanagar, P.O. Gakulpur, Udaipur, District: Gomati Tripura

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Pushpita Bhowmik, wife of late Sadhan Bhowmik, resident of Dhajanagar, P.O. Gakulpur, Udaipur, District: Gomati Tripura

………Petitioner

- V E R S U S -

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Usha Rani Sarkar, wife of late Ruhidas Sarkar, resident of Durjoynagar, Udaipur, P.O. Gakulpur, Udaipur, District: Gomati Tripura

………Petitioner

- V E R S U S -

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

2. The Director of Industries, Government of Tripura, Khejur Bagan, Kunjaban, Pin: 799006, District: West Tripura

Smt. Gita Deb, wife of late Indrajit Deb, resident of Vill- Nagicharra, P.O. Ranir Bazar, District: West Tripura

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Laxmi Rani Sutradhar, wife of late Rakhal Sutradhar, resident of Surjyamoni Nagar, District: West Tripura, Pin- 799130

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Basanti Acharjee, wife of Bhopal Acharjee, resident of Vill: Barjala, P.O. Barjala, P.S. Ramnagar Outpost, Agartala, District: West Tripura

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Baishaki Baraik, wife of late Subal Ram Baraik, resident of Vill: Gunjaria Tilla, P.S. A. D. Nagar, P.O. S. D. Mission, Agartala, District: West Tripura

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Jhunu Rani Acharjee,

wife of late Babul Saha, resident of Vill: Bhati Abhoynagar, Cantonment Road, Near Punjab Tailor, Agartala, West Tripura, Pin:799001

………Petitioner

- V E R S U S -

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Putul Baraik, wife of late Nandalal Baraik, resident of Vill: Gunjaria Tilla, P.O. S. D. Mission, Agartala, District: West Tripura

………Petitioner

- V E R S U S -

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Laxmi Dey, wife of late Kalipada Dey, resident of Kathaltali, P.O. Ranirkhamar, P.S. Amtali, District: West Tripura

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

2. The Director of Industries, Government of Tripura, Khejur Bagan, Kunjaban, Pin: 799006, District: West Tripura

Smt. Mina Deb,

wife of late Makhan Lal Deb, resident of Vill: Uttar Badharghat, P.O. A. D. Nagar, Agartala, District: West Tripura

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

Smt. Kanak Sutradhar, wife of late Khagendra Chandra Sutradhar, resident of Vill & P.O. Karailong, P.S. Teliamura, District: Khowai Tripura

1. T he State of Tripura, represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Govt. of Tripura , Khejur Bagan, P.O. Agartala, District: West Tripura

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For the petitioners

: Ms. S. Deb Gupta, Advocate

For the respondents

: Mr. S. Chakraborty, Addl. G.A.

Date of hearing & delivery : 16.12.2016

of Judgment and order Whether fit for reporting : NO

JudgmentandUrder(Ural)

All these petitions being WP(C) No. 192 of 2016 [Smt.Shyamali Dey (Deb) v. State of Tripura & Ors.],WP(C) No. 205 of|2016 [Smt. Kajal Rani Sutradhar v. State of Tripura & Ors. ],WP(C) No. 206 of 2016 [ Smt. Sukla Roy Barman v. State ofTripura & Ors.|, WP(C) No. 207 of 2016 [ Smt Usha Rani}Sutradhar v. State of Tripura & Ors.|,WP(C) No. 208 of 2016 [| Smt}Kalpana Rani Barik v. State of Tripura & Ors.],WP(C) No. 209 of2016 [| Smt Puspita Bhowmik v. State of Tripura & Ors.],WP(C)No. 210 of 2016 [| Smt Usha Rani Sarkar v. State ot Tripura & Ors. ]WP(C) No. 211 of 2016 [ Smt Gita Deb v. State of Tripura &Ors.|],WP(C) No. 234 of 2016 [ Smt Laxmi Rani Sutradhar v. Stateof ‘Tripura & Ors.],WP(C) No. 236 of 2016 [| Smt Basanti Acharjeev. State of Tripura & Ors.|,WP(C) No. 237 of 2016 [| Smt Baishak1|Barik v. State of Tripura & Ors.|],WP(C) No. 238 of 2016 [ SmtJhunu Rani Acharjee v. State of Tripura & Ors.], WP(C) No. 239 of|2016 [ Smt Putul Barik v. State of Tripura & Ors.|,WP(C) No. 271of 2016 [ Smt Laxmi Dey v. State of Tripura & Ors.|,WP(C). No.272 of 2016 [ Smt Mina Deb v. State of Tripura & Ors.] and WP(C)..No. 301 of 2016 | Smt Kanak Sutradhar v. State of lripura & Ors. |,are consolidated and clustered tor disposal by a common Judgment

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Inasmuch as 1ssues are common and setup 1n an identical conspectusot tacts.

[2 |Heard Ms. S. Deb Gupta, learned counsel appearing for|the petitioners as well as Mr. S. Chakraborty, learned Addl. G.A.appearing for the respondents.

[3|Ms. 8S. Deb Gupta, learned counsel appearing for thepetitioners has submitted that these writ petitions are squarelycovered by a decision of this Court in Sri Hiralal Debnath v. Stateof Tripura & Ors. [judgment and order dated 30.11.2016 in WP(C)No. 144 of 2016].

[4|Mr. Chakraborty, learned Addl. G.A. appearing for the|respondents has however submitted that all the petitioners in thisbatch of writ petitions have approached this Court after aninordinate delay. Even the industrial workers in respect of whose payscale, the grievance has been raised in these writ petitions did notapproach any forum for redressal in their lite time. [The writpetitioners in these cases are getting family pension after death ofthose industrial workers. As such, he has stoutly contended that allthese writ petitions are hit by principle of laches and hence, those|may not be decided on merit.

[5|Per contra, Ms. Deb Gupta, learned counsel appearing|for the petitioners has submitted that it is a perennial deprivationinasmuch as if the relief 1s granted, that would impact Increase In the WP(C)Nos.192/205/206/207/208/209/210/211/ 234/236/237/238/239/271/272/301 of 2016

family pension. Thus, not only industrial workers but as_ thebeneficiary of the property that was created by the industrial|workers and have their own independent cause to approach this|Court.

[6|For purpose of appreciating the controversy, somerelevant facts may be introduced in the beginning. The petitionershave contended that the industrial workers through whom they areraising their grievance were regularized as the industrial workers|w.e.t. 01.04.1979 by an order dated 21.08.1979 by the Department ot Industries.

[7|But they were wrongly placed in the pay scale of Ks.170-210/- whereas they were entitled to the pay scale of Rs. 240-440/- w.e.f. 01.04.1979. Some of the similarly situated industrial|workers had approached the Industrial Tribunal through thereference and the said reference was registered as the Labour Case|No. 01 of 1998. By the judgment and award dated 14.12.2000, theIndustrial Tribunal had declared that the industrial workers were.entitled to the pay scale of Rs. 240-440/- w.e.f. 01.04.1979.

[8|The said order was challenged by the State by filing awrit petition being WP(C) No. 546 of 2001 in the Gauhati HighCourt which had then the jurisdiction over the matters in the State ofTripura. By the judgment and order dated 15.11.2002 the GauhatiHigh Court affirmed the judgment and award of the Industrial Tribunal.

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[9|Even though, the State had _ preferred special leavepetition against the said judgment dated 15.11.2002 but the specialleave petition was dismissed and such dismissal has been recorded1n |the judgment dated 08.10.2013 passed by this Court in WP(C) No.O7 of 2006. [hat tact has not been contested by Mr. Chakraborty,|learned Add. G.A. appearing for the respondents. It 1s an admittedposition of fact that the State by issuing the order dated 17.03.2005implemented the said judgment and award passed by the IndustrialTribunal and those industrial workers were given the pay scale of|Rs. 94.0-44.0/- w.e.f. 01.04.1979.

[10]Some other industrial workers had approached this|Court by tiling the writ petitions being WP(C) No. 490 of 2005,|WP(C) No. 491 of 2005, WP(C) No. 305 of 2005 and WP(C) No. 306.of 2005 and the similar relief was granted to them. The State by theorder under No. F.DI / ESTT / IV-27 /2013 / 18686-761, dated29.12.2014 has implemented the judgment as stated and the benefitof the pay-scale of Rs. 240-440/- w.e.f. 01.04.1979.

Conclusion

[11]In the present case, the industrial workers’ wereindisputably simuarly circumstanced to that of the referring'|claimants and the other writ petitioners who had filed the other writpetitions. But after death of the industrial workers, the writpetitioners as the legal heir of the industrial workers 1n favour of thepetitioners of those writ petitions are getting the famuy pension on|the basis of devolution of pay scale of Rs. 170-210/- as those)

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industrial workers against whom the petitioners herein are getting”the family pension did not in their tenure of service or in the life}time, get the said pay scale of Rs. 240-440/- w.e.f. 01.04.1979, even|though the State had implemented the same pay scale for thoseindustrial workers who had approached this Court. Having noticed|the deprivation perennially, the petitioners have approached thisCourt.

[12] |Ms. Deb Gupta, learned counsel appearing for thepetitioners has referred to the judgment and award dated 14.12.2000passed by the Industrial Tribunal in Labour Case No. 01 of 1998 as published in the Tripura Gazette Extra Ordinary Issue dated09.04.2001 (Annexure-4 to the writ petition being WP(C) No. 192of 2016).|

[13] |Ms. Deb Gupta, learned counsel appearing for thepetitioner has further referred to the Judgment and order dated15.11.2002 as passed in WP(C) No. 546 of 2001 (Annexure-5 to thewrit petition being WP(C) No. 192 of 2016) whereby the industrial|award was affirmed by the High Court on discarding the challengethrown by the State.

[14] |Thereafter, Ms. Deb Gupta, learned counsel has also|referred some other previous decisions of this Court as referredabove, such as the common judgment and order dated 29.04.2014,delivered in a batch of writ petitions being WP(C) No. 490 of 2005

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etc., and contended that the doctrine of laches will not apply in thesecases as these are the cases on perennial deprivation and thedeprivation still continues.

[15]In this regard, Ms. 8. Debgupta, learned counsel|appearing for the petitioners has referred to a decision of the ApexCourt in State of Madhya Pradesh v. Jogendra Shrivastava,|reported in (2010) 12 SCC 538 where the Apex Court has held as under:

“18.We cannot agree. Where the issue relates to paymentor fixation of salary or any allowance, the challenge is notbarred by limitation or the doctrine of laches, as thedenial of benefit occurs every month when the salary 1s.paid, thereby giving rise to a fresh cause of action, basedon continuing wrong. Though the lesser payment may bea consequence of the error that was committed at thetime of appointment, the claim for a higher allowance inaccordance with the Rules (prospectively from the date ofapplication) cannot be rejected merely because it arisesfrom a wrong fixation made several years prior to theclaim for correct payment. But in respect of grant ofconsequential relief of recovery of arrears for the pastperiod, the principle relating to recurring and successivewrongs would apply. Therefore the consequential relief,of payment of arrears will have to be restricted to aperiod of three years prior to the date of the originalapplication. [See: M.R. Gupta vs. Union of India (1995) 5SCC 628, and Union of India vs. Tarsem Singh (2008) 8SCC 648]”.

[16] |So far the doctrine of laches is concerned, in the|common Judgment and order dated 29.04.2014 delivered in WP(C)No. 490 of 2005 etc., (Annexure-7 to the writ petition being WP(C)No. 192 of 2016) it has been held as under:

“5. In view of the above decision of the Apex Court, thepresent writ petitions may be allowed keeping in view of,the judgment passed by this Court in WP(C) No.7 of.2006 but the relief in respect of arrears should berestricted to the extent of three years prior to the date oforiginal application. It may be mentioned here that thejudgment of the apex Court in the case of JogendraSreevastava (supra) was not referred while passing of thejudgment of WP(C) No.7 of 2006.|

6. Accordingly, both the writ petitions are allowed interms of the judgment passed in WP(C) No.7 of 2006 and.subsequent judgment passed in WP(C) No.305 of 2005,and WP(C) No.306 of 2005, subject to the consequentialrelief in respect of payment of arrears restricted to aperiod of three years prior to the date of originalapplication filed by the petitioners of the present cases. |

7. Both the writ petitions were filed on 07.12.2005 and so.the petitioners of both the writ petitions shall be allowedconsequential reliefs of payment of arrears restricted to aperiod of three years prior to the date of filing of thesepetitions.’|

[17]Mr. Chakraborty, learned Addl. G.A. appearing for the respondents has admitted that the said judgment and order dated29.04.2014 has been implemented by the State. This Court does notfind why the writ petitioners wil not get similar benefits through|the industrial workers against whose right they have approached thisCourt as after death of the industrial workers. They have right onthe same property. Hence, the writ petitioners have their own|Independent cause. |

[18]The writ petitioners are indisputably the legal heirs ofthe industrial workers. It is now well recognized that the pension orthe family pension is the property created out of the employment.Thus, this Court, in view of that the ratio laid down in JogendraSreevastava (supra), 1s of the opmion that the doctrine of laches|would not apply in these cases rather the principle of recurring andsuccessive wrongs would apply.

[19] |Having regard to the judgment and order dated|29.04.2014 (Annexure-7 to the writ petition being WP(C) No. 192|of 2016), this Court 1s of the view that the pay of the industrial|workers against whose entitlement the writ petitioners have WP(C)Nos.192/205/206/207/208/209/210/211/ 234/236/237/238/239/271/272/301 of 2016

approached this Court, shall be re-tixed 1n the scale of pay of Ks. 240-440/- w.e.t. 01.04.1979 with admissible allowance. Thereafter, therevised pay scale shall be accounted against those industrial workersagainst the pay scale of Rs. 240-440/- till their retirement and for|purpose of pension and famuly pension. |

[20]Accordingly, the pension and the retiral benefits ofthose industrial workers be re-fixed by the respondents. ‘Thereafter,the family pension of the petitioners shall be re-fixed in terms of this_order. But the consequential financial benefits in respect of thepayment of arrears against the family pension shall be restricted to a|period of 3 (three) years prior to the date of filing of the writ petition.Such arrear shall be paid to the petitioners within a period of 6 (six)months trom the day when the petitioners shall submit a copy of thisjudgment and order. For purpose of record, this writ petition was|filed in this High Court on 11.03.2016. The day of filing of the writpetition in respect of the other writ petition has been recorded in the,order passed separately 1n those writ petitions.

Accordingly, these writ petitions stand allowed to theextent as indicated above. There shall be no order as to costs.

JUDGE

A.Ghosh

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