Badri Nath Roy v. The Union of India

kitchen servant female. The service of the deceased was confirmed on

01.01.1964 and her pay was also fixed vide memo no. CH 4(45) 73 dated

20.03.1974 in which the name of the deceased appears at serial no.3.

15. Subsequent thereto the establishment under which the deceased mother of the writ petitioner was working had been decided to be merged with the Central Government under the Ministry of Coal . Particularly, service of the deceased was merged with the Bharat Coal Coking Ltd. and due to the effect of the said merger and as such the deceased became entitled for pro- rata pension on the basis of length of services rendered in the CMLWO under the Central Government. The deceased had approached the authority concern but no actual benefit was granted and in the meanwhile the mother of the petitioner died on 18.07.1986. Thereafter, also the writ petitioner in the capacity of son of the deceased employee pursuing the matter but no relief was granted. In consequent thereof, the petitioner was 5 W.P.(S) No.3612 of 2023 compelled to file an application before the Central Administrative Tribunal in view of the provision of Section 14 of the Administrative Tribunal Act, 1985.

16. The learned tribunal vide order dated 16.03.2023 has refused the extent of said benefits to the deceased by dismissing the said original application against which the present writ petition has been filed.

17. The learned counsel for the petitioner has taken the ground that once the service of the deceased mother of the writ petitioner has been merged with the Bharat Coking Coal Ltd. which directly comes under the control of Ministry of Coal, she became entitle for pension and other admissible dues for the period for which she has rendered her services in the hospital at that time when it was under the control of the CMLWO. However, the deceased had not prayed for other admissible dues rather had only prayed to extend the benefits of pension for the period for which she had rendered her services under the CMLWO.

18. The learned Tribunal however, has called upon the Central Government (respondents) but without asking the respondents to file any written statement, the Tribunal had agreed to the oral objection regarding the non- entitlement of the deceased employee for the pro-rata pension benefits and had dismissed the original application against which the present writ petition has been filed.

19. This Court has heard the matter on several occasions. The learned Central Government Counsel took time to file supplementary counter affidavit on the ground that the issue of entitlement of the writ petitioner (son of deceased employee) with respect to pro-rata pension appears to be not 6 W.P.(S) No.3612 of 2023 referred in the counter affidavit which has been filed in this proceeding. This Court vide order dated 8th February, 2024 had granted such an opportunity and in pursuant thereto, the supplementary counter affidavit dated 22.02.2024 has been filed.

20. Mr. Anil Kumar, learned Additional Solicitor General of India has submitted by referring to paragraph 10 and 11 of the said counter affidavit by taking the ground that the deceased was not at all entitled for the pro- rata pension as an option was to be given by one of the other employee as required as per annexure B dated 4th Sept. 1985 which is appended to the counter affidavit but no such option has been exercised by the deceased, hence, no benefit can be granted to her.

21. Another ground has been taken that the deceased had died way back on

18.07.1986 and for the first time the writ petitioner has approached the court of law in the year 2017 by filing the original application being O.A. No.220 of 2017 which was decided on 8th January,2019. As such the ground of inordinate delay and laches has been taken for the purpose of dismissal of the writ petition.

22. The learned counsel for the writ petitioner in response has submitted that there is no question of applicability of delay and laches, reason being that the cause of action to approach the court of law will be said to arose the day when the learned tribunal has passed an order on 08.01.2019 while disposing the O.A. No. 220 of 2017. Even though the mother of the writ petitioner had died on 18.07.1986 but the moment the learned tribunal has passed order on 08.01.2019 directing the respondent concerned to consider and pass reasoned order and the said order admittedly has not 7 W.P.(S) No.3612 of 2023 been challenged rather the same has been acted upon by issuing the communication letter dated 31.10.2019 which is annexure 6 to the writ petition. However, no decision was taken under the garb that the representation was not filed by the writ petitioner as per the direction passed by the learned tribunal as contained in the order dated 08.01.2019 passed in O.A. No. 220 of 2017.

23. Thereafter, the contempt has also been filed being C.P. 28 of 2022 but the same has been dropped on the basis of the objections raised by the respondents that it is the laches on the part of the writ petitioner to avail the opportunity as what granted by the learned tribunal vide order dated

08.01.2019 passed in O.A. No. 220 of 2017 and when the contempt proceedings was dropped on that ground, thereafter again the writ petition was filed in O.A. No. 051/000886/2022 which has been disposed of on

16.03.2023.

24. The learned counsel for the petitioner based upon the aforesaid facts has submitted that there will be no applicability of delay and laches as respondents have not assailed the order dated 08.01.2019 passed by the learned tribunal dated OA/051/00220/2017.

25. This Court has heard the learned counsel for the parties and have also gone through the findings recorded by the learned Tribunal as it is available in the impugned order. This Court on appreciation of the rival submissions is required to answer the following issues. I. What would be the effect of merger of one establishment with the other establishment. 8 W.P.(S) No.3612 of 2023 II. What would be the implication of the absorption of service of one employee to the other establishment. III. Whether in the given facts and circumstances of this instant case, can it be said that the subject matter be of the present writ petitioner can be thrown on the principle of delay and laches. IV. Whether in the case of entitlement and benefits having not been granted by the respondent establishment/ appointing authority that such appointing authority can be allowed to take plea of the fence sitter for applicability of the principle of delay and laches.

26. All the four issues are interlinked together so far as the factual aspect in question is concerned, hence, the same are being discussed together.

27. The law is well settled so far as the issue of merger is concerned that once an establishment is merged with another establishment, the establishment which is sought to be merged with another establishment will lose its identity. The moment identity is lost then there will be single identity after merger. The consequence of the same is that all the benefits which was being given to the establishment to which another establishment has been merged will also ipso facto be applicable to the establishment which has been merged.

28. The Hon’ble Apex Court in the case of Singer India Ltd. v. Chander Mohan Chadha, (2004) 7 SCC 1 while dealing with the aspect of merger has taken into consideration the ratio of the judgment passed in Saraswati Industrial Syndicate Ltd. v. CIT, 1990 Supp SCC 675, has observed that when two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the 9 W.P.(S) No.3612 of 2023 amalgamating company loses its entity. For ready reference the relevant paragraph of aforesaid judgment is being quoted s under: “8. In Saraswati Industrial Syndicate Ltd. v. CIT [1990 Supp SCC 675 : AIR 1991 SC 70] (para 6) it has been held that there can be no doubt that when two companies amalgamate and merge into one, the transferor company loses its identity as it ceases to have its business. However, their respective rights or liabilities are determined under the Scheme of Amalgamation, but the corporate identity of the transferor company ceases to exist with effect from the date the amalgamation is made effective.”

29. The second issue that what would be the effect of absorption of the service of employee. Absorption means that all parts of services that are rendered in one establishment will be said to be absorbed in another establishment. The moment decision of absorption has been taken then the past services rendered by one of the other employees will be deemed to be performed in the establishment in which the services has been absorbed. There is difference in between the regularization and absorption of services and when an employee is to be regularized then the principle is that the benefit of regularization is to be given from the date when the decision to be regularized has been taken. But the same principle is not applicable in the matter of absorption, rather all past services rendered by such employees whose services has been absorbed in another establishment and in that view of the matter such employee will be entitled to get all the admissible benefits of the establishment to which services have been absorbed.

30. Reference in this regard has been made in the case of judgment rendered in the case of A.N.Sachdeva (Dead) By Legal Representatives and 10 W.P.(S) No.3612 of 2023 Others v. Maharshi Dayanand University, Rohtak and Another [(2015) 10 SCC 117], the Hon'ble Apex Court while considering the fact about creation of class among class has observed as under paragraph 30 which reads as under :- “30. Considering the principles enunciated under Articles 14 and 16 of the Constitution, and that the benefit is not an ex-gratia payment but a payment in recognition of past service, in our opinion, discrimination could not have been made between those employees who have been absorbed/allocated and are entitled to count their services as qualifying service for the purpose of pension and not those who have been appointed directly. Fact remains that all these employees have served in Punjab University/Kurukshetra University/MD University without any break. MD University, prior to its establishment, was the regional centre of Kurukshetra University. Expectation had arisen to compute the period of service rendered in Punjab University/Kurukshetra University which cannot be unreasonably deprived of. Merely because a person has been appointed and others have been absorbed/allocated makes no difference as to the service rendered. Even otherwise, it is a case of upward revision of benefit and the classification which is sought to be created by the aforesaid method of not extending benefit to persons appointed directly and by fixing cut-off date cannot be said to be intelligible one; same is discriminatory and thus, the appellants would be entitled for the benefit from the date decision has been taken on 24-12-2001 to compute the previous service rendered in Punjab University/Kurukshetra University as qualifying service. In other words, they would be entitled for the benefit prospectively from the date of issuance of Memorandum dated 24-12-

2001. The employees expressed their willingness deposit/adjustment of the employer's contribution of CPF as required in the Memorandum dated 24-12- 2001.” [Emphasis supplied] 11 W.P.(S) No.3612 of 2023

31. It is, thus, evident that in the aforesaid case, the Hon'ble Apex Court has observed that merely because of person has been appointed and others have been absorbed/allocated makes no difference as to the service rendered and if the same will be allowed to happen, it will be nothing but a case of unreasonable classification and discrimination.

32. The third issue in the present fact of the case is the principle of delay and laches and applicability of the principle of fence sitter. Both the issues are interrelated reasons being that the word fence sitter means back bencher meaning thereby a litigant is approaching the Court of law after order has been passed by the court of law on the identical grievance, then in those circumstances, such litigant will be termed as the fence sitter. The principle of fence sitter is mainly based upon the principle of delay and laches.

33. The writ petition in which the Court exercises the power of equity and hence, although, the principle of limitation is not applicable but the delay and laches is to be seen for the reason that writ Court has not made for loth litigant rather if the litigant is adduced with infringement of fundamental right or the legal vested right which is his duty to approach the court of law within the reasonable period.

34. Reference, in this regard may be taken from the judgment as rendered by the Hon’ble Apex Court in the case of New Delhi Municipal Council Vs. Pan Singh & Ors. [(2007) 9 SCC 278] wherein at paragraph 17, the Hon’ble Apex Court observed as under: “17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, 12 W.P.(S) No.3612 of 2023 ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India).”

35. Similarly, in State of M.P. & Ors Vs. Nandlal Jaiswal & Ors reported in AIR 1987 SC 251, the Hon’ble Apex Court has observed that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and if there is inordinate delay on the part of the petitioner in filing the writ petition and such delay is not satisfactorily explained, the High Court may decline to interfere and grant relief in exercise of its writ jurisdiction. Emphasis was laid down on the principle of delay and laches stating that the High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and inconvenience in bringing the justice.

36. In the aforesaid context, further reference is made to the judgment rendered by Hon’ble Apex Court in Baljeet Singh (Dead) through Lrs. And Others Vs. State of U.P. and Others reported in 2019 SCC OnLine SC 1004 [S.L.P. (C) Nos. 30404-30442/2017] wherein the land losers had approached the Court of law after inordinate delay seeking enhanced compensation which the Hon’ble Apex Court has refused to condone. In the aforesaid case, in para- 7, the Hon’ble Apex Court has held which reads as hereunder – “7. The matter requires examination from another aspect, viz., laches and delay. It is a very recognised principle of jurisprudence that a right not exercised for a long time is nonexistent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases, courts have coined the doctrine of laches and delay as well as doctrine 13 W.P.(S) No.3612 of 2023 of acquiescence and non-suited the litigants who approached the court belatedly without any justifiable explanation for bringing the action after unreasonable delay. In those cases, where the period of limitation is prescribed within which the action is to be brought before the court, if the action is not brought within that prescribed period, the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over, however, subject to the prayer for condonation of delay and if there is a justifiable explanation for bringing the action after the prescribed period of limitation is over and sufficient cause is shown, the court may condone the delay. Therefore, in a case where the period of limitation is prescribed and the action is not brought within the period of limitation and subsequently proceedings are initiated after the period of limitation along with the prayer for condonation of delay, in that case, the applicant has to make out a sufficient cause and justify the cause for delay with a proper explanation. It is not that in each and every case despite the sufficient cause is not shown and the delay is not properly explained, the court may condone the delay. To make out a case for condonation of delay, the applicant has to make out a sufficient cause/reason which prevented him in initiating the proceedings within the period of limitation. Otherwise, he will be accused of gross negligence. If the aggrieved party does not initiate the proceedings within the period of limitation without any sufficient cause, he can be denied the relief on the ground of unexplained laches and delay and on the presumption that such person has waived his right or acquiesced with the order. These principles are based on the principles relatable to sound public policy that if a person does not exercise his right for a long time, then such right is non- existent.”

37. The issue of fence sitter has been taken into consideration by the Hon’ble Apex Court in the case of State of Uttar Pradesh and Ors. Vrs. Arvind 14 W.P.(S) No.3612 of 2023 Kumar Srivastava and Ors., (2015) 1 SCC 347, wherein, at paragraph 18 and 19, the Hon’ble Apex Court has been pleased to hold as under:-. “18. ……… in U.P. Jal Nigam v. Jaswant Singh reported in (2006) 11 SCC 464 where the issue was pertaining to entitlement of the employees of U.P. Jal Nigam to continue in service up to the age of 60 years. In Harwindra Kumar v. Chief Engineer, Karmik reported in (2005) 13 SCC 300 this Court had earlier held that these employees were in fact entitled to continue in service up to the age of 60 years. After the aforesaid decision, a spate of writ petitions came to be filed in the High Court by those who had retired long back. The question that arose for consideration was as to whether the employees who did not wake up to challenge their retirement orders, and accepted the same, and had collected their post-retirement benefits as well, could be given relief in the light of the decision delivered in Harwindra Kumar reported in (2005) 13 SCC 300. The Court refused to extend the benefit applying the principle of delay and laches. It was held that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his rights and acquiesces into the situation, his writ petition cannot be heard after a couple of years on the ground that the same relief should be granted to him as was granted to the persons similarly situated who were vigilant about their rights and challenged their retirement. In para 7, the Court quoted from Rup Diamonds reported in (1989) 2 SCC 356. In para 8, S.M. Kotrayya reported in (1996) 6 SCC 267 was taken note of.

19. Some other judgments on the same principle of laches and delay are taken note of in paras 9 to 11 which are as follows: (Jaswant Singh case reported in (2006) 11 SCC 464, SCC pp. 469-70) 15 W.P.(S) No.3612 of 2023 “9. Similarly in Jagdish Lal v. State of Haryana reported in (1997) 6 SCC 538 this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542)” “The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan reported in (1995) 6 SCC 684. The appellants‟ desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.‟

10. In Union of India v. C.K. Dharagupta reported in (1997) 3 SCC 395 it was observed as follows: (SCC p. 398, para 9) “9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief.‟

11. In Govt. of W.B. v. Tarun K. Roy reported in (2004) 1 SCC 347, Their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) „ “34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their 16 W.P.(S) No.3612 of 2023 part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar reported in (1991) Supp (1) SCC 138. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against respondents. Furthermore, the other employees not being before this Court although they are ventilating grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.”

38. Again, in the case of State of Orissa and anr. v. Mamata Mohanty, (2011) 3 SCC 436, the Hon’ble Apex Court has been pleased to hold: - “53. Needless to say that the Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1-1-1986 by filing a petition on 11-11-2005 but the High Court for some unexplained reason 17 W.P.(S) No.3612 of 2023 granted the relief w.e.f. 1-6-1984, though even the Notification dated 6-10-1989 makes it applicable w.e.f. 1-1-1986.

54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time.”

39. It is evident that the principle of fence sitter will not be applicable if there are laches on the part of the authority who is to take decision. Such a position of law that a wrong doer cannot be allowed to take the advantage of its own wrong. The principle is that if one or other person is entitled for any benefit which is the bounded duty of the State being the appointing authority to extend the said benefit and if the benefit has not been granted then the establishment concerned cannot be allowed to take advantage of the fact that the litigant concerned has not approached the court of law within the reasonable period.

40. Reference in this regard may be taken in the case of Kusheshwar Prasad Singh v. State of Bihar and Others reported in (2007) 11 SCC 447 wherein the Hon’ble Apex court held as under:- “15. In Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127] the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within 18 W.P.(S) No.3612 of 2023 six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time barred. This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated: “It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.”

16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”.

41. Similar view has been reiterated by Hon'ble Apex Court in the case of Indore Development Authority v. Shailendra (Dead) through legal representatives and others reported in (2018) 3 SCC 412 at paragraph 143 which is being quoted hereunder as:- “143. When once the court has restrained the State authorities to take possession, or to maintain status quo they cannot pay the amount or do anything further, as such the 19 W.P.(S) No.3612 of 2023 consequences of interim orders cannot be used against the State. It is basic principle that when a party is disabled to perform a duty and it is not possible for him to perform a duty, is a good excuse. It is a settled proposition that one cannot be permitted to take advantage of his own wrong. The doctrine commodum ex injuria sua nemo habere debet means convenience cannot accrue to a party from his own wrong. No person ought to have advantage of his own wrong. A litigant may be right or wrong. Normally merit of lis is to be seen on date of institution. One cannot be permitted to obtain unjust injunction or stay orders and take advantage of own actions. Law intends to give redress to the just causes; at the same time, it is not its policy to foment litigation and enable to reap the fruits owing to the delay caused by unscrupulous persons by their own actions by misusing the process of law and dilatory tactics.”

42. This Court is dealing in the present facts and circumstance of the case the issue of benefit. It is no more res integra that the pension is not bounty rather it is right as has been held by the Hon’ble Apex Court in the case of Deokinandan Prasad vs. State of Bihar & Ors. reported in (1971) 2 SCC 330, at paragraph 33 has held as under: “33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order, dated June 12, 1968, denying the petitioner 20 W.P.(S) No.3612 of 2023 right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 5 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to property consider the claim of the petitioner for payment of pension according to law.”

43. Subsequently, the Hon’ble Apex Court in the case of State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr. reported in (2013) 12 SCC 210, at paragraph 16 has held as under: “16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. Article 300-A of the Constitution of India reads as under: “300-A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.” 21 W.P.(S) No.3612 of 2023

44. This Court now is proceeding to examine the factual aspect in order to assess as to whether the deceased mother of the writ petitioner was at all entitled for the benefit of pension said to be pro-rata i.e for the period for which the deceased mother of the writ petitioner had performed her duties while she was in the CMLWO prior to its merger i.e. prior to 01.08.1985. The fact about issue of merger is not in dispute which is also evident from the decision as contained in annexure A dated 26.07.1985. It is evident from the aforesaid communication which is by way of communication of the approval of the Government of India to be transfer of their hospital listed presently under the administrative control of the Coal Mines Labour Welfare Organization to the subsidiaries of the Coal India Ltd.

45. The further decision has been taken as under para 2 that all the employees of the Coal Mines Labour Welfare Organization, including the Central Head Services Person (CHS) and casual/work charged staff would stand transferred in the cadres of the respective coal companies with effect from

01.08.1985.

46. The instruction regarding their absorption, option etc. have been decided separately. For reference the decision so taken in the communication dated 26.07.1985 which is referred hereunder. No.S.-201 9/4/84-CSW GOVERNMENT OF INDIA MINISTRY OF STEEL, MINES & COAL DEPARTMENT OF COAL ….. To New Delhi, dated 26th July, 1985 22 W.P.(S) No.3612 of 2023 The Coal Mines Welfare Commissioner, Jagjivan Nagar, Dhanbad. Transfer of hospitals etc. of Coal Mines Labour Welfare Organization to the Coal Sub:- Companies. ……. Sir, I am directed to convey the approval of the Government of India to the transfer of the hospitals listed below presently under the administrative control of the Coal Mines Labour Welfare Organisation in the subsidiaries of Coal India Ltd. and Singareni Colliaries Company Ltd. with effect from 1st August, 1985 as detailed below:- Bharat Coking Coal Ltd. Eastern Coalfields Ltd. i) Central Hospital, Dhanbad i) Central Hospital, Asansol ii) T.B. Hospital, Searsole iii)Rehabilitation cum Artificial Limb Fitting Centre, Sitabari iii)Allopathic Dispensary at Mugma I)Central Hospital, Manendragarh, ii)Rehabilitation Centre, Chhindwara i)Regional Hospital Ramagundam Singareni Collieries Company Ltd. Western Coalfields Ltd.

2. All the employees of the Coal Mines Labor Welfare Organization, including the CHS personnel and all casual/work charged staff which would stand transferred to the cadres of the respective coal companies. w.e.f. 01.08.1985. Instruction regarding their absorption, option etc. are being issued separately.

3. Assets and liabilities of the above-mentioned hospitals etc. will stand transferred to the subsidiaries of Coal India Ltd. and Singareni Collieries Company Ltd., as the case may be as on 01.08.1985.

4. Instructions regarding valuation, settlement of liabilities etc. will be issued separately.

5. This issue in consultation with the Integrated Finance Division of the Department of Coal. Yours faithfully, Sd/- (R.S. Shivani) DIRECTOR

47. The competent authority has come out with the decision on 04.09.1985 in pursuance to the decision taken 26.07.1985 whereby and whereunder the decision has been taken that all regular employees other than CHS 23 W.P.(S) No.3612 of 2023 personnel working in the transferred hospital will be given the following option:- (a) Permanent absorption in the service of the coal company concerned w.e.f. 01.08.1985 (F.N.) Employees opting for such absorption will receive the same terminal and other benefits for their Govt. service prior to absorption in the coal companies as were allowed to the staff of the Regional Hospitals of the CMWO which were similarly transferred in 1981-1983 to the coal companies. (b) Retention of Govt. Services: Employees opting to retain Govt. Service will be declared surplus and dealt with under the Surplus Cell scheme under the Department of Personnel and Training. (c) Voluntary retirement: only such employees as are eligible for seeking voluntary retirement under the rules, will have the option of seeking such retirement.

48. It is further evident there from that the details of option as regard pay etc. on absorption in the services of the coal companies has been decided to be communicated separately.

49. One office memorandum, dated 05th July, 1989, has also been issued by Government of India, Ministry of Personnel Public, Grievances & Pensions (Department of Pension & Pensioners’ Welfare) (Annexure C) needs to be referred, herein a. The permanent Government servants shall have an option to retain the pensionary benefits available to them under the Government rules or be governed by the rules of the Public Sector Undertraining/Autonomous Body. This option shall also be 24 W.P.(S) No.3612 of 2023 available to quasi-permanent and temporary employees after conformed Public Sector Undertaking/Autonomous Body. b. The Government servants who opt to be governed by the pensionary benefits available under the Government, shall at the time of their retirement, be entitled to pension etc. in accordance with the Central Government rules in force at that time. c. The permanent Government servants with less than 10 years service, quasi permanent employees and temporary employees who opt for the rule of the PSU/Autonomous Body shall be entitled to an amount equal to provident fund contribution for the period of their service under the Government upto the date of permanent absorption in the PSU/ Autonomous Body with simple interest at 6% per annum as opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body. d. The permanent Central Government servants who have completed 10 years or more of service and who opt for the retirement benefits of a PSU/Autonomous Body will receive pro-rata retirement benefits for the service rendered under the Government. These will be regulated as follows. (i) Employees who have an option either to draw pro-rata pension monthly or to draw a lump sum amount in lieu of 100% pro-rata pension. (ii) Where the employees opt in favor of monthly payment of pro-rata pension, the same shall be allowed to be drawn with 25 W.P.(S) No.3612 of 2023 effect from the date of permanent absorption in a PSU/Autonomous Body. No part of pro-rata pension will be allowed to be commuted either at the time of permanent absorption or any time thereafter. (iii) In the case of employees who opt in favor of a lumpsum amount in lieu of 100% pro-rata pension, the lumpsum value shall be worked out on the basis of table prescribed under the CCS (Commutation of Pension) Rules, 1981. (iv) In the case of employees covered by clause (ii), the retirement gratuity and for those covered by clause (iii) above, both retirement gratuity as well as lumpsum commuted value shall be paid on the expiry of a period of 7 years from the date of permanent absorption. The amounts, however, can be paid earlier event of death/retirement/resignation/discharge from service. (v) The amounts of retirement gratuity and lump sum value in lieu of pension mentioned in clause (iv) above shall remain with the Government, and earn interest at the rate prescribed for General provident Fund deposits from time to time for the period they remain with the Government.

50. On 05.07.1989 reiterating the decision which is available in the communication dated 04.09.1985, is evident from the office memorandum dated 18.07.1989 which is for the purpose of settlement of pensionary terms etc. irrespective of Government Employees transferred 26 W.P.(S) No.3612 of 2023 in mass to the Central Public Sector Undertaking/Central Autonomous bodies.

51. It needs to refer herein that the office memorandum dated 05.07.1989 is not relevant for the purpose of its application to the case of the deceased mother of the writ petitioner due to the reason being that the same is with respect to the settlement of pensionary terms in respect of Government Employees transferred in masse the Central Public Sector Undertaking/Central Autonomous bodies.

52. We are dealing herein the issue of merger for the purpose of deciding the entitlement of pro-rata pension on the basis of the service rendered by the mother of the writ petitioner in the CMLWO. The relevant is the decision dated 26th July, 1985 and the 04th September, 1985 as quoted and referred herein. “All the employees of the Coal Mines Labor Welfare Organization, including the CHS personnel and all casual/work charged staff which would stand transferred to the cadres of the respective coal companies. w.e.f.

01.08.1985. Instruction regarding their absorption, option etc. are being issued separately.”

53. The decision at paragraph 2 of the communication dated 26.07.1985 is bearing on the issue herein.

54. The learned Additional Solicitor General of India has tried to impress upon the court that option was required to be given by one or the other merged employee as per the decision so taken as referred in paragraph 2 to the communication dated 26.07.1985. Since the deceased mother has 27 W.P.(S) No.3612 of 2023 not given any option, hence, there is no question of holding the mother of the writ petitioner entitle for the benefit by virtue of the merger.

55. This court in order to appreciate the aforesaid submission has considered the contents mentioned in paragraph 2 of the letter dated 26.07.1985.

56. It is evident from the word strokes that all the employees of the Central Coal Mines Labour Welfare Organization (CMLWO) including the CHS personnel and all casual/work charge staff would stand transferred to the cadre of the respective coal companies with effect from 01.08.1985. The phrase is that all employees of the Coal Mines Labour Welfare Organization stand transferred to the cadre of the respective coal companies.

57. It is thus evident the moment the decision has been taken to the effect that the services will stand transferred then the moment such decision has been taken the status of the employee working in the CMLWO will become the Coal Companies employees where the services will be merged with effect from 01.08.1985.

58. Thereafter, the instruction regarding their absorption, option etc. are being issued separately. In pursuant to the said policy a decision has been issued separately vide communication dated 04.09.1985.

59. It is evident from the perusal of the said communication dated 04.09.1985 wherein it has been decided that all regular employees other than CHS personnel working in the transferred hospital will be given the following option a, b, c as quoted hereinabove.

60. The interpretation which has been made by learned ASGI that since there is reference of all regular employees and the deceased mother of the writ 28 W.P.(S) No.3612 of 2023 petitioner was also under the regular establishment, hence, option was also required to be given by her but this Court is not in agreement with such submission reason being that the learned ASGI has left out the other word which is in continuation i.e. “other than CHS personal working in the transferred hospital.”

61. Herein the deceased mother of the writ petitioner was working in the CHS hospital and hence, there is no difficulty with reaching to the conclusion that the decision so taken in the communication dated

04.09.1985 has de-categorized the merged employee in two categories. First category is regular employee leaving apart the CHS personal meaning thereby the CHS personal working in the transferred hospital have been taken a different category to that of the other regular employees. The communication dated 04.09.1985 residing to have option from the regular employee, thus there was no requirement to seek option from the employees working in the Central Health Services in any capacity.

62. The admitted case of the respondents is that no option was given by the deceased mother hence, the son of the deceased mother is not entitled for benefit.

63. But according to our considered view the same is contrary to the policy decision taken by the respondents as per the decision dated 04.09.1985 as per the interpretation made by this Court in the preceding paragraph.

64. The second question that the moment the option is not required which is the only objection holding the deceased mother of the writ petitioner not entitled of pensionary benefit. It has been answered in favour of the writ 29 W.P.(S) No.3612 of 2023 petitioner and against the respondent. The only question now to be decided based upon the discussion made herein above the issue of delay and based upon that the submission has also been made that the writ petition is not fit to be allowed.

65. This Court has already dealt with the issue of delay and laches basing upon the judicial pronouncement of the Hon’ble Apex Court as referred hereinabove and taking into consideration the aforesaid principle of law and further pension is not to be treated as bounty rather a right and when the right has been accrued in favour of one or the other herein the deceased mother of the petitioner, then under what capacity the competent authority of the respondent has not disbursed the same. It has not been disbursed then respondent cannot be allowed to take the ground that the grievance has been raised belatedly. Even the said ground is not available if the conduct of the respondent will be taken into consideration.

66. The admitted fact herein is that the mother of the writ petitioner has died on 1986 and thereafter original application has been filed in the year 2017 which was not dismissed and even no objection was raised before the tribunal in O.A. No. 220 of 2017 rather the respondents have accepted that if the liberty will be granted to the writ petitioner for filing the representation for consideration of the claim, then there will be no grievance.

67. Considering the same the aforesaid O.A. No. 220 of 2017 was disposed of vide order dated 08.01.2019 therefore, once the writ petitioner has approached to the Court of law and the Court of law has not dealt with the issue on delay and laches said to be committed by the petitioner rather the 30 W.P.(S) No.3612 of 2023 liberty was granted to file representation, however, the representation was not filed within the time granted and subsequently, the contempt application was also filed. The contempt court i.e. the tribunal after taking into consideration the fact that the representation was not filed within time, hence, the contempt proceeding was dropped.

68. Thereafter, another original application was filed in the year 2022 and the same was rejected vide order dated 16.03.2023.

69. The aforesaid factual aspect which is admitted is very much clarifying the situation that the delay and laches said to be committed from the death of the mother of petitioner till filing of the original application i.e. till 2017 cannot be allowed to be agitated by the respondents. It is for the reason that the delay and laches is to be counted from the date of dropping of the contempt i.e. 17.09.2022. Further also that pension is the recurring cause of action and once a person is become entitled for the pensionary benefit the same will be said to be agitated irrespective of the delay and laches.

70. Before delving upon the issue, we deem it fit and proper to deal with recurring cause of action. “Recurring” means suffering of the litigant, particularly, the public servant if the suffering is continuing day by day, the same will be said to be recurring cause of action. Recurring/successive wrongs" are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. A recurring or successive wrong, occurs when successive acts, each giving rise to a distinct and separate cause of action, are committed. Each act, in itself wrongful, constitutes a separate cause of action for sustaining a claim or a complaint 31 W.P.(S) No.3612 of 2023

71. The Hon’ble Apex Court in the case of Union of India & Ors Vs Tarsem Singh [(2008) 8 SCC 648] at paragraph 4 held as under:- “4. The principles underlying continuing wrongs recurring/successive wrongs have been applied to service law disputes. A “continuing wrong” refers to a single wrongful act which causes a continuing injury. “Recurring/successive wrongs” are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [AIR 1959 SC 798] explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963): (AIR p. 807, para 31) “31. … It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. 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. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.”

72. The Hon'ble Apex Court in the case of M.L.Patil (Dead) through Legal Representatives v. State of Goa and Another reported in (2023) 1 SCC 660, has reiterated the same view and observed that the pension will be said to be recurring cause, reference in this regard be made to the 32 W.P.(S) No.3612 of 2023 judgment rendered for ready reference the relevant paragraph of the aforesaid judgment is being quoted hereunder as :- “6. As such, the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. -----.”

73. This Court on the basis of aforesaid discussion and coming back to the order passed by the learned tribunal is of the view that the learned tribunal has not appreciated the fact in right perspective and has merely gone into the fact that the death of the deceased mother of the writ petitioner had occurred in 1986 and the same cause of action will be said to be continue till the original application was dismissed.

74. But this Court is not in agreement to the said finding because once the entitlement has been held by the learned tribunal then the legal heir of the deceased employee will become entitle to get the consequential benefits by way of pension.

75. This is for the reason that the death is not within the control of the human being and as such the monetary benefit based upon the entitlement cannot be denied merely because a person has died rather it is the duty of the Court to decide the issue based upon the settled proposition of law and if the entitlement is there, the legal heirs cannot be deprived from such entitlement which is to be paid in terms of the Rules. 33 W.P.(S) No.3612 of 2023

76. Therefore, this Court in exercising the power of judicial review upon the order passed by the learned tribunal based upon the issue laid down by the Hon’ble Apex Court in the case of L. Chandra Kumar Versus Union of India & Ors. reported in (1997) 3 SCC 261, and the law is well settled that the power of judicial review is to be exercise if there is any perversity in the finding or the order is having lack of jurisdiction rather it is question of non-appreciation of the legal issues regarding entitlement of pension based upon the discussion herein. Therefore, this Court is of the view that it is a fit case where the power of judicial review is to be exercised.

77. Accordingly, the order dated 16.03.2023 passed by the learned Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi is hereby quashed and set-aside.

78. In view thereof, the present writ petition stands allowed.

79. In the result the monetary benefit however, without any interest which is to be calculated of the deceased mother of the writ petitioner from the date of her appointment till the date of merger is directed to be paid in favour of writ petitioner within a period of four month from the date of receipt of copy of this order.

80. Accordingly, the instant writ petition stands disposed of. (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Rajnish/A.F.R.