# Smt. Somwati v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-23
- **Case number:** Special Appeal Defective No. 503 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-somwati-v-state-of-u-p-ors-43193
- **Pages:** 3

## Headnote

Constitution
of
India,
Art.-226-Writ
petition-claim of family pension-dismissal
by learned Single Judge on laches-whether
justified?-held-'No'-as no third party rights
affected-from delay-the sufferer person is
only petitioner itself-delay not fatal-appeal
allowed.
Held: Para-6
We are of the view that the learned
Single Judge was manifestly in error in
dismissing the writ petition on the
ground
of
laches.
The
appropriate
remedy would be to direct that the claim
of the appellant be duly verified in
accordance with law. We clarify that
authorities shall duly scrutinize the basis
of the claim on merits and if the
appellant is entitled to the payment of
family pension, such payment, for a
period of three years prior to the filing
the writ petition, shall be effected in
favour of the appellant. We clarify that
this would be subject to due verification
of each and every factual averment
which is contained in the petition by the
804
 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority. This exercise shall
be completed within a period of four
months from the date of receipt of a
certified copy of this order. The appellant
would be entitled to simple interest at
the rate of 6% per annum.
Case Law discussed:
AWC-2008-6-6434

## Text

2 All] Smt. Somwati Vs. State of U.P. & Ors.
803
State Government for being placed with
funds for disbursing the liability if any.
Consequently, it was submitted that
unless the Central Government bears its
part of the financial expenditure as
claimed by the State, there is no reason or
justification to fasten the liability on the
State Government alone.
5. The issue before the Court is as to
whether the dispute in regard to the funding
requirement of the DRDA, can in any
manner, affect the entitlement of an
employee to the payment of gratuity. The
entitlement of an employee to receive
gratuity is not in dispute. As an employee of
a registered society, and as held in the
judgment of the learned Single Judge in
Matadeen Yadav's case, the respondent was
entitled to the payment of gratuity under the
Act of 1972. The relationship of employer
and employee is between the respondent
and the DRDA which is a society registered
under the Act of 1860. Hence, the
mandamus which has been issued by the
learned Single Judge would operate against
the society with whom there is a
relationship of employer and employee. The
purported
difficulty
which
the
State
Government faces in regard to receiving the
share of the Union Government towards the
expenditure cannot, in our view, affect the
entitlement of an employee or his right to
receive the payment of gratuity from his
employer once the entitlement is not in
dispute. Any dispute or difficulty as
between
the
State
and
the
Union
Governments has to be resolved at the
governmental level and cannot be a ground
to deny the payment of gratuity. All that we
need to clarify is that the mandamus which
has been issued by the learned Single Judge
will operate against the DRDA of which the
respondent is an employee and which is a
society under the Act of 1860.
6.

The
special
appeal
is,
accordingly, disposed of. There shall be
no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Special Appeal Defective No. 503 of 2015
Smt. Somwati
 ...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri Mohd. Navi Hussain
Counsel for the Respondents:
C.S.C., Sri Ravindra Kumar Gaur
Constitution
of
India,
Art.-226-Writ
petition-claim of family pension-dismissal
by learned Single Judge on laches-whether
justified?-held-'No'-as no third party rights
affected-from delay-the sufferer person is
only petitioner itself-delay not fatal-appeal
allowed.
Held: Para-6
We are of the view that the learned
Single Judge was manifestly in error in
dismissing the writ petition on the
ground
of
laches.
The
appropriate
remedy would be to direct that the claim
of the appellant be duly verified in
accordance with law. We clarify that
authorities shall duly scrutinize the basis
of the claim on merits and if the
appellant is entitled to the payment of
family pension, such payment, for a
period of three years prior to the filing
the writ petition, shall be effected in
favour of the appellant. We clarify that
this would be subject to due verification
of each and every factual averment
which is contained in the petition by the
804
 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority. This exercise shall
be completed within a period of four
months from the date of receipt of a
certified copy of this order. The appellant
would be entitled to simple interest at
the rate of 6% per annum.
Case Law discussed:
AWC-2008-6-6434
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The appellant, who sought a writ
directing the payment of family pension
to her as a widow of a deceased employee
who was working as a Peon in the office
of the Town Area Committee, Atmadpur,
District Agra, is aggrieved by the
dismissal of her petition on the ground of
laches.
2. The case of the appellant is that
her husband was a peon in the Town Area
Committee, Atmadpur, Agra. It has been
stated that he attained the age of
superannuation on 31 December 1997.
The grievance of the appellant is that after
the death of her spouse on 5 October
2001, she was entitled to payment of
family pension which, however, was not
released.
3. The writ petition was filed in May
2015 for the release of family pension and
other benefits to which the appellant
would be entitled to after the death of her
husband. The learned Single Judge
dismissed the writ petition holding that it
was barred by laches.
4. The right to receive pension or,
for that matter, family pension is a
continuing right. The failure of the
employer to deny such pension would
constitute
a
continuing
wrong.
A
distinction has to be made between cases
where a delay in moving the Court results
in a situation where vested rights of third
parties are disrupted. Consequently, issues
such as seniority have to be adjudicated at
the earliest. On the other hand, a matter
such as pension relates to the employee
himself and where family pension is
involved, it does not affect rights of third
parties in spite of delay. Consequently, it
is also well settled that a claim to pension,
where pension has not been paid, is based
on a continuing wrong and relief can be
granted even if there is a delay. However,
on the entitlement of arrears, it would be
open to the High Court to restrict the
relief by confining the payment of arrears
to a period of three years prior to the date
of the filing of the writ petition.
5. This principle was summarized in
Union of India vs. Tarsem Singh1 by the
Supreme Court :
"To summarise, normally, a belated
service related claim will be rejected on
the ground of delay and laches (where
remedy is sought by filing a writ petition)
or limitation (where remedy is sought by
an application to the Administrative
Tribunal). One of the exceptions to the
said rule is cases relating to a continuing
wrong. Where a service related claim is
based on a continuing wrong, relief can be
granted even if there is a long delay in
seeking remedy, with reference to the date
on
which
the
continuing
wrong
commenced, if such continuing wrong
creates a continuing source of injury. But
there is an exception to the exception. If
the grievance is in respect of any order or
administrative decision which related to
or affected several others also, and if the
re-opening of the issue would affect the
settled rights of third parties, then the
2 All] Vishwanath Singh Vs. Commissioner Lucknow Mandal Lko & Anr.
805
claim will not be entertained. For
example, if the issue relates to payment or
re-fixation of pay or pension, relief may
be granted in spite of delay as it does not
affect the rights of third parties. But if the
claim involved issues relating to seniority
or promotion etc., affecting others, delay
would render the claim stale and doctrine
of laches/limitation will be applied. In so
far as the consequential relief of recovery
of arrears for a past period, the principles
relating to recurring/successive wrongs
will apply. As a consequence, High
Courts will restrict the consequential
relief relating to arrears normally to a
period of three years prior to the date of
filing of the writ petition."
6. We are of the view that the
learned Single Judge was manifestly in
error in dismissing the writ petition on the
ground of laches. The appropriate remedy
would be to direct that the claim of the
appellant be duly verified in accordance
with law. We clarify that authorities shall
duly scrutinize the basis of the claim on
merits and if the appellant is entitled to
the payment of family pension, such
payment, for a period of three years prior
to the filing the writ petition, shall be
effected in favour of the appellant. We
clarify that this would be subject to due
verification of each and every factual
averment which is contained in the
petition by the competent authority. This
exercise shall be completed within a
period of four months from the date of
receipt of a certified copy of this order.
The appellant would be entitled to simple
interest at the rate of 6% per annum.
7. By way of abundant caution, we
clarify that the direction for the payment
of family pension and interest would
operate only if, upon due verification of
the factual averments on the basis of
which the claim was set up, the claim is
found
to
be
substantiated
by
the
competent authority.
8.

The
special
appeal
is,
accordingly, allowed.
9. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.07.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.
Misc Singh No. 735 of 2010
Vishwanath Singh
...Petitioner
Versus
Commissioner Lucknow Mandal Lko. &
Anr.
...Respondents
Counsel for the Petitioner:
Anurag Srivastava
Counsel for the Respondents:
C.S.C.
Arms Act, 1959-Section 17 (3)-Cancellation
of fire arms license-on ground number of
FIR lodged-without considering effect on
public peace or safety-ignored by District
Magistrate as well as appellate authority
held-unsustainable-quashed.
Held: Para-13, 14 and 15
13. As averred above, in the case at hand,
the District Magistrate, has not recorded
any finding that it was necessary to cancel
the licence for the security of public peace
or for public safety. All that he has done is,
have referred to some applications and
reports lodged against the petitioner. The
mere fact that some reports had been
lodged against the petitioner could not form
basis of cancelling the licence. The order