Legal Right to claim Dearness Allowance: Calcutta HC rejects review filed by West Bengal govt

The Calcutta High Court has rejected a review application preferred by the West Bengal government against an earlier judgment which held that government employees had a right to be paid dearness allowance..The judgment in question had been passed in August 2018 in an appeal by Confederation of State Government Employees, West Bengal against an order of the West Bengal Administrative Tribunal (Tribunal)..By this judgment, the Bench of Justices Debasish Kar Gupta and Shekhar B Saraf had ruled that the dearness allowance recommended by the state government’s 5th Pay Commission is a “legally enforceable right” of government employees. The Court had observed that though the Pay Commission recommendations are not enforceable in nature, they become binding on the government once they are accepted..The West Bengal government had filed a review application to reconsider the verdict. Appearing for the state, Advocate General Kishore Dutta contended that the ruling was passed in violation of natural justice principles. It was the state’s case that the Court had ignored binding precedents and that it had instead placed reliance on irrelevant precedents in the 2018 ruling..Therefore, Dutta argued that the August 2018 judgment was manifestly and palpably erroneous. It was also argued that the ruling required review given the Supreme Court’s February 2019 judgment in Tamil Nadu Electricity Board v. TNEB Thochilar Akkiya Sangam..The Bench of Justices Harish Tandon and Shekhar B Saraf, however, declined to allow the application on finding the state’s submissions to be factually incorrect. Further, it proceeded to distinguish the cases cited by the state in support of its arguments..Notably, the Court noted that the Supreme Court’s ruling in Tamil Nadu Electricity Board v. TNEB Thochilar Akkiya Sangam did not deal with the issue of whether employees were legally entitled to dearness allowance. Rather, it had only held that the state is not obligated to adopt the Centre’s revised standards when it came to the payment of dearness allowance. In any case, the High Court observed,.“…subsequent events and judgments cannot be taken into account for the purposes of review of a judgment. This principle is settled by a catena of judgments of the Supreme Court and our High Court.“.Another contention advanced by the state was that the Court ought to have first considered whether dearness allowance was a justiciable right before it issued a writ of mandamus in relation to the same. It was the state’s case that it was not a justiciable right. Rejecting this argument, the Bench pointed out that,.“The fact that the Court held that the grant of dearness allowance is a legally enforceable right meant that the Court considered the issue of such grant of dearness allowance to be justiciable and then proceeded to render the decision therein. Had the Court considered the grant of dearness allowance to be a non-justiciable right, the Court would not have pronounced a decision on this matter. It is implicit in the said judgment……there was no need for the Court to separately enunciate that the matter before the Court was justiciable or that dearness allowance is a justiciable right. The question had been addressed and it cannot be now argued that the issue of justiciability had not been decided.”