The right to interest on delayed payment of retiral benefits is a fundamental right, but the claim for interest must be made within the period of limitation prescribed by the Limitation Act.

1. In this writ petition the only issue that arises for consideration is whether the claim of interest made after 10 years on the delayed payment of retiral benefits ought to be allowed.

Counsel for the petitioner contends that it is an admitted position that the petitioner retired on 31st January, 2000 and the pension payment order was issued on 16th January, 2002 and within two months of the issuance of the pension payment order that is on 26th March, 2002 the retiral benefit was paid to the petitioner. As the petitioner was entitled to payment of retiral benefits forthwith or maximum within a period of 30 days and admittedly, the said was not done the petitioner is entitled to payment of interest on and from the date of retirement till payment was made to the petitioner in March, 2002.

2. The contention of the respondent authorities is that in view of Section 3 of the Limitation Act which entitles a person to seek remedy within three years from the date, the cause of action arose, in the instant case the cause of action arose in 2002 and the application has been filed after 10 years therefore on the ground of delay alone this application be dismissed.

3. The judgment delivered by J. Bhattacharya, J. on 9th February, 2012 and reported in 2012 (1) WBLR (Cal) 903 is distinguishable as the issue of delay was not considered in the said judgment. To claim interest after 10 years, the petitioner must show and establish his right which is a continuing right as has been held in (2007) 15 SCC 627. In the instant case, the petitioner has not established his right to interest within the period of limitation. Therefore, he will not be entitled to claim payment of interest at this belated stage.

(2008) 3 SCC 44 relied on by J. Bhattacharya, J. in his judgment was not a case wherein the issue of delay was considered. It was a case with regard to entitlement of interest and there is no dispute that the petitioner is entitled to payment of interest, but the question is will he be entitled to such interest beyond the period of limitation. (2008) 8 SCC 648 so also (2009) 1 SCC 168 were relied on by the petitioner before J. Bhattacharya, J. In fact, in view of decisions reported in (2011) 5 SCC 394, (2011) 3 SCC 436, (2010) 6 SCC 1, (2011) 1 WBLR 486, (2010) 12 SCC 538, (2005) 13 SCC 161, (2006) 9 SCC 630 and (2011) 2 SCC 94, this application merits no order. In (1988) 2 SCC 580 the test for a continuing wrong has been laid down and the said test be applied to the facts of this case.

4. In opposing the issue of delay counsel for the writ petitioner has submitted that (2011) 5 SCC 394 is distinguishable on facts as the case related to a Land Acquisition proceeding wherein third party rights were created and status quo ante could not be restored, such is not the case here. Similarly (2011) 3 SCC 436 is distinguishable as the State was represented which agreed to make payment of interest and it is not a case of a wrong order. In fact although the issue of delay was raised and considered there is no finding in respect thereof and the case was decided on merits. (2008) 3 SCC 44 was a case of interest and not delay and the only reason for placing reliance on the said judgment by J. Bhattacharya, J. was for the purpose of highlighting that interest was a fundamental right. Interest on interest has never been granted and (2008) 8 SCC 648 aids the petitioner. There is no dispute with the proposition laid down in (2009) 1 SCC 168, (2010) 6 SCC 1 and (2010) 12 SCC 538. IN the case of (2005) 13 SCC 161 there was no cut off date for interest while in (1988) 2 SCC 580 there was a cut off date. (2006) 9 SCC 630 is inapplicable to the facts of this case and (2011) 2 SCC 94 is accepted on principle.

(2011) 1 WBLR Cal. 486 is relied on as it aids the petitioner and although the issue of interest was dealt with the question of delay did not arise for consideration. (2007) 1 CLJ 21, (2008) 8 SCC 44 and (2007) 15 SCC 627 were all allowed on merits therefore