Allahabad High Court

Dr. Shiv Narain Chaubey vs State Of U.P. & Others on 20 December, 2013

Bench: Rakesh Tiwari, Mahesh Chandra Tripathi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Court No. 21
 

 

 
		       Civil Misc. Writ Petition No.40467 of 2002 
 
Dr. Shiv Narain Chaubey 	           			   ..........Petitioner. 
 
					Vs. 
 
State of U.P. & others						.......Respondents.
 
*******
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Mahesh Chandra Tripathi, J.

Heard learned counsel for the parties and perused the record.

By means of present writ petition, petitioner prays for a writ, order or direction in the nature of mandamus commanding the respondents to pay the post retiral benefits with 12% interest to the petitioner.

The present writ petition had been entertained in the year 2002. It reveals from the record that the petitioner was appointed as Medical Officer in U.P. State Medical & Health Services and joined on the said post on 1.2.1959 and continued to work to the satisfaction of his superiors and later on was confirmed in the year 1961. The petitioner vide order dated 25.1.1974 had been promoted to the post of Senior Pathologist. It transpires from the record that due to some problem he had proceeded on leave and could not join the duty and due to his overstay, the respondents had not allowed him to join on the duty. Aggrieved with the such act of the respondents, the petitioner had filed claim petition no. 226 (II) of 1979 before the U.P. Public Service Tribunal-II Lucknow and the said claim petition was dismissed on 31.8.1981. Aggrieved by the said order dated 31.8.1981, the petitioner had filed writ petition no. 13936 of 1981. The said writ petition was partly allowed vide judgment and order dated 8.5.1998 quashing the order dated 31.8.1981 passed by the Tribunal. The Court while passing the order dated 8.5.1998 had observed as under:

"The petition is thus partly allowed. The order of the Tribunal dated 13.8.1981 is quashed. The claim petition filed by the petitioner shall stand partly allowed and petitioner shall be paid his pension and other retiral benefits treating him in continuous service throughout. The amount which is due to the petitioner shall be paid within a period of four months from the date of filing a certified copy of this order before the authority concerned. There will be no order as to cost."

It is admitted situation that the State Government has neither challenged the aforementioned judgment and order dated 8.5.1998 before the Apex Court nor complied with the order and meanwhile the petitioner on 21.4.1990 had also attained the age of superannuation.

It reveals from the record that in response to the judgment and order dated 8.5.1998, the petitioner had moved to the respondents along with certified copy of the same for payment of GPF and other retiral dues and meanwhile a very long time had lapsed in enter-department correspondence, but at no point of time, the superior officers of the petitioner had ever inclined to look into the matter and decide the claim of the petitioner.

We have seen the order sheet which reveals the glaring defiance on the part of the respondents. The Court vide order dated 23.10.2006 had directed the respondent no. 2 to ensure that the post retiral benefits of the petitioner such as are within the jurisdiction of the department are to be paid to the petitioner within three months of the date on which a certified copy of this order is presented before the respondent no. 2, or in alternative counter affidavit may be filed. When the aforementioned order had not been complied, the Court vide order dated 23.10.2013 had passed a very detailed order with the following observations:

"Heard learned counsel for the parties.

This Writ Petition was filed for a relief in the nature of mandamus commanding the respondents to pay the post retiral benefits with 12% interest to the petitioner.

It appears from the record that the Director General, Medical & Health, U.P. Lucknow as well as the Director, Employees State Insurance, Labour Health Services, Sarvodaya Nagar, Kanpur, U.P., respondent nos. 2 & 3 respectively, have denied their responsibility by filing separate Counter Affidavits. It also appears from the record that this Court vide order dated 8.5.1998 passed in Writ Petition No. 13936 of 1991 while allowing the writ petition had issued a positive direction:

After the aforesaid order was passed on 8.5.1998, respondent no.2, Director General, Medical & Health, U.P. Lucknow vide order dated 22.10.2007 sanctioned payment of gratuity and interim pension to the petitioner for the period 1.5.1990 to 22.10.2007.

The contention of the learned counsel for the petitioner is that after the aforesaid payment of pension was made only few contempt proceedings were initiated against the respondent and the payment of interim pension was again stopped. On this basis, he submits that the respondent no.2 had passed orders for payment of interim pension only to avoid the contempt proceedings. Since the retiral dues of the petitioner have not been paid, he has no other option and was compelled to file the petition for payment of retiral dues.

In the aforesaid circumstances and in view of the separate counter affidavits filed by the respondent nos. 2 & 3, it appears that� conduct of respondent no.2 & 3 needs judicial scrutiny as at the first blush their conduct appear to be contemptuous. Respondent nos.2 & 3 are therefore, directed to be present before the Court on 6th November, 2013 to explain, by means of filing an affidavit, as to why t hey appear to be hampering the course of justice by not complying with the orders on this Court.

List this case on 6th November, 2013.

Shri C.K. Singh, learned Standing Counsel appearing for the respondent nos.2 & 3, shall inform them about this order today by fax."

Bare perusal of order dated 23.10.2013 also reveals that respondent no. 2, Director General, Medical & Health, U.P. Lucknow vide order dated 22.10.2007 sanctioned payment of gratuity and interim pension to the petitioner for the period 1.5.1990 to 22.10.2007. In this regard, learned counsel for the petitioner had also submitted that the said amount was paid only due to threat of contempt proceedings and subsequently interim pension was also stopped.

Again on 6.11.2013, the Court had passed a detailed order whereby the Director General, Medical & Health U.P. Lucknow/Respondent no. 2 had given an undertaking to the Court that some payments have been given to the petitioner and rest of the amount pertaining to his retiral dues etc. will be paid to him within a period of three weeks. By the said order, respondent no. 2 was also directed in the meantime to calculate the amount of interest at the rate of 6% and inform the Court, accordingly. Thereafter, the matter again came up for hearing before the Court on 2.12.2013 on which date, the Court after hearing the parties had observed that "after perusing the said affidavit, we find that it is not in strict compliance of the directions given in the said order, therefore, prays for some more time being granted to ensure strict compliance of the said order. Accordingly, put up this matter on 04.12.2013 before the appropriate Bench." Again on 4.12.2013, the matter came up for hearing on which date following order was passed:

" An affidavit has been filed today in Court by Amar Singh Rathore, Director General, Medical & Health Department, U.P. Lucknow, who is personally present in Court along with an application for exemption of his personal appearance. In Paragraph 7 of the said affidavit, it has been admitted that the interest on gratuity as well as on the delayed payment of pension would come to Rs. 10,14,166/-. It has further been stated in Paragraph 8 of the affidavit that a request has been made to the State Government for sanction of the said amount.

Sri M.S. Pipersenia, learned standing counsel has submitted that some time may be granted to the deponent to make the aforesaid payment as the process of obtaining sanction from the State Government may take some time. Though, the request for grant of six weeks' time has been made but in the facts and circumstances of the case and especially in view of the fact that the petitioner is an old man aged about 85 years and prima facie we are of the opinion that the interest has been withheld without any justifiable reason, we hereby allow two weeks to the deponent to ensure payment of the said amount to the petitioner.

List this matter on 19th December 2013 before the appropriate Bench.

In the meantime, the respondent shall ensure payment of the aforesaid amount to the petitioner. In case, the payment is made before the next date fixed then the personal appearance of Amar Singh Rathore, Director General, Medical & Health Department, U.P. Lucknow shall stand exempted. However, in case the payment is not made then Amar Singh Rathore, Director General, Medical & Health Department, U.P. Lucknow shall remain present in the Court on the date fixed in order to file his personal affidavit relating to development in the matter.

Counsel for the petitioner has further pointed out that e-payment of an amount of Rs. 95,120/- alleged to have been made to the petitioner has also not been received by him so far.

Sri M.S. Pipersenia, learned counsel for the respondent has stated that the Director General, Medical & Health Department, U.P. Lucknow will also ensure that the aforesaid amount is cleared by the next date. "

In this background, the matter has been taken up on 19.12.2013 and the Director has put his appearance before the Court and again some time was sought for payment of retiral dues along with interest. In these aforementioned circumstances, the Court was compelled to pass the following order:

"Heard Sri Neeraj Tripathi, counsel for the petitioner, Sri Ramesh Upadhyaya, learned Chief Standing Counsel assisted by Sri M.S. Pipersenia, Standing Counsel, appearing for the State at length. Sri Upadhyaya, has given assurance that he will make all possible efforts to pay the amount by tomorrow.

As prayed, put up tomorrow at 3.00 P.M.. The Director who is present in Court shall also be present in Court tomorrow."

Pursuant to the order dated 19.12.2013, Sri Ramesh Upadhya, learned Chief Standing Counsel, Sri Suresh Singh, Addl. C.S.C. along with Sri M.S. Pipersenia, Standing Counsel are present. In view of the undertaking given by the Director General, Medical & Health Department, U.P. Lucknow on 4.12.2013, the Standing Counsel has filed affidavit regarding calculation which is apparent from Annexure-3 of the affidavit filed by the Director on 4.12.2013 that a sum of Rs.9,63,152/- has been calculated towards interest at the rate of 6% and Sri Neeraj Tripathi, appearing for the petitioner has also brought notice of the Court that principal amount comes to the tune of Rs.21,48,207/-. The details regarding admitted amount which is due has also been reflected from the Government Order dated 3.12.2013. In response to the order dated 19.12.2013, the Director is present in Court and it has been apprised by learned Chief Standing Counsel that amount of Rs. 10,14,166/- had been credited in Account No. 20758631333 which is in the name of Shiv Narain Chaubey and detail is being filed through an affidavit as Annexure-1 to the said affidavit filed today. Sri Neeraj Tripathi, appearing for the petitioner has also confirmed that the aforesaid amount has been credited in the account of the petitioner.

In a catena of decisions, the Apex Court as well as this Court has clearly laid down that all the departmental formalities ought to be completed prior to attaining the age of superannuation of an employee. Admittedly, in the present case, the petitioner had attained the age of superannuation on 21.4.1990 and the petitioner challenged the order dated 31.8.1981 passed by the Tribunal through writ petition no. 13936 of 1981 which was partly allowed on 8.5.1998 as mentioned above, but anyhow the respondents-authorities were never inclined to clear all the retiral dues of the petitioner. This is also brought to the notice of the Court that the petitioner at present is 84 years old and being on dialysis and also in a very critical physical situation. This is really traumatic to visualize the situation of a retired government employee who could not get his pension and other retiral dues in last 33 years. The conduct of opposite parties has shaken the faith of an ordinary employee.

In view of the above, we propose to direct the respondents to calculate the complete amount towards post retiral benefits along with 6% simple interest which is due to the petitioner within a month and further within fifteen days time the complete amount must be disbursed in his account. In case, the amount is not paid, an application may be moved by the petitioner for enhancement of interest and for coercive action against the officers concerned.

In the aforementioned peculiar facts and circumstances of the case which would eventually proved that due to deliberate in-action of State officials, the petitioner had suffered huge agony, apathy and financial crisis, we quantify Rs. 1 lac is to be imposed as cost on the State, but on the request of learned Standing Counsel, appearing for the State, the cost of Rs.50,000/- is being imposed towards costs. It is made clear that the said cost is to be paid to the petitioner within a month.

With the aforesaid observations, the writ petition is disposed of with costs of Rs.50,000/-.

Dated: 20.12.2013

RCT/-