HEMLATA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE order of Yesterday dismissing the LPA in default was not signed as learned counsel for the appellants made a mention that the court be pleased to hear the matter on merits on recall of the dismissal for default. The indulgence was permitted.

(2.) THE appellant Hemlata filed a writ petition along with her two sons claiming retiral benefits of her husband who died without receiving them. The retiral dues identified are contributory provident fund during the period 16.7.1946 to 31.10.1949. Husband to the petitioner Hemlata and father of the petitioners Messrs Alok Kumar Prasad and Viveka Nand Prasad, the late Dr. Brahamanand Prasad died in harness on 19 September, 1982. He was not paid his retiral dues. The learned judge, who decided the writ petition unsuited the widow and her two sons on the ground that the petitioner was barred by laches. The learned judge was of the opinion that the cause of action accrued in 1949. The petition was filed in 1996 and hence the case was belated.

(3.) THIS Court is afraid, it does not agree with the decision of learned judge that a petition could be ousted on the ground that a retiral benefit not being paid by the State or a pension not being delivered, the State can take up a posture that it is barred by a statute of limitation. These are such dues and provident fund is one of them which if not paid render the employer liable to prosecution. It is a continuing wrong. The State Government cannot eat up the retiral dues of the employees and take advantage of the cover that the limitation has barred it. Retaining such dues is unjust enrichment. This offends equity and equity alone will determine this issue. The other factors in the Letters Patent Appeal are justice and good conscience. This case will need to be decided on justice, equity and good conscience. Age old law on equity exempts attachment of certain properties when a decree is in execution and on this the Court is reminded of the equitable principle under Section 60 of the Civil Procedure Code, 1908. Any right of personal service cannot be attached also. Can a provident fund not paid be attached? The Answer is obvious. The Supreme Court had made it clear in the case of State of Kerala and others vs. M. Padmanabhan Nair, AIR 1985 SC 356 that delayed payment of pension will attract interest. This rule has been extended by the Supreme Court recently. If pension or retiral benefits are due beyond a reasonable doubt, payment must be made to the persons who wait for it.