Bechu Rai vs State Of U.P. And Others
2014 Latest Caselaw 361 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(AFR)
 
Court No. - 34
 

 
Case :- WRIT - A No. - 18717 of 2004
 

 
Petitioner :- Bechu Rai
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Chandra Shekhar Srivastav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. The only grievance of petitioner is that he has not been paid retiral dues though he has retired on 31.7.1997.

2. In the counter affidavit the respondents have given the reason that service record of petitioner could not be verified by them and "no objection certificate" has not been produced by petitioner.

3. Learned counsel for the respondents submitted that the petitioner absconded from duty frequently and, therefore, there was break in his service. It is further submitted that the petitioner could not make available photograph and other necessary documents for the purposes of pension despite several reminders and as such, in absence of requisite documents for sanction of pension, the retiral dues could not be paid in time for which petitioner was solely responsible.

4. The brief facts relevant for the purpose of writ petition are that the petitioner was appointed on 17.1.1964 as Gram Sewak and continued to work as such till 31.7.1997 when he retired from service. On 31.7.1997, for the first time, the respondents' Department served an order upon petitioner that on attaining the age of superannuation, he would retire on 31.7.1997 and he is expected to furnish papers relating to pension in the office so that pension papers may be sent to the concerned department for sanction. The aforesaid order was complied by the petitioner but due to non-availability of petitioner's Service Book, which is maintained by the Department itself, pension could not be sanctioned. Despite several representations of petitioner time and again, he failed to get anything. In the meantime correspondence between the authorities with respect to grant of pension was going on but all in vain. It is also asserted by petitioner that due to inaction of respondent authorities and non-availability of Service Book, petitioner's retiral benefits could not have been sanctioned and he is at the verge of starvation.

5. A counter affidavit has been filed on behalf of respondents no. 1 to 4. On material aspect for not sanctioning pension within time, there is no satisfactory reply in the counter affidavit, it is skatchy and no proper and specific reply of the assertions made in the writ petition has been given.

6. From a perusal of record, it is evident that respondents have failed in their duty to give the pensionary/retiral benefits to petitioner within time or a reasonable time, which they were bound to do, under law. No suitable explanation has been given in the counter affidavit for denying retiral benefits to the petitioner for such a long time.

7. Today, one cannot dispute that pension has attained the status of fundamental right, a facet of right to earn livelihood enshrined under Article 21 of the Constitution. Pension and retiral benefits have been held deferred wages which an employee earn by rendering service for a particular length of time. This is what was held by Apex Court in D.S.Nakara Vs. Union of India AIR 1983 SC 130. This proposition is almost settled. To defer this right of an employee for an unreasonably long period, one must have an authority in law which more or the less must be specific and clear. On the mere pretext of caution, such right cannot be made to suffer in any manner. Whenever such an occasion is brought to notice, this Court has risen to protect the poor and helpless retired employee.

8. Besides above, it is also evident from record that petitioner retired from service on 31.7.1997 but due to non availability of service record he could not be paid retiral benefit within time. Maintenance of service record is the responsibility of respondent authorities. If it is not traceable, the petitioner cannot be blamed and made to suffer. According to paragraph 10 of the counter affidavit, certain payments were mae in June and July, 2005 i.e. after about 8 years of the retirement.

9. A system controlled by bureaucrats can create wrangles to device something which is formulated by policy makers for the benefit of the citizen is writ large from this case. A beneficial scheme made for social welfare of old and retired employees, can be twisted by the system creating a nightmare to retired employees, as is quite evident. The constitutional obligation though pen down to reach the people but Executive, habitual of remaining static or move slow or no movement at all, can render such scheme quite ineffective and inoperative. Something due today may not be available to a person right in time. It is like a person starving today is assured food to be provide after a month or two by which time he may die of hunger or the foodstuff itself may rot. If this is not unconstitutional then what else can be.

10. Learned counsel appearing for respondents simply tried to shift responsibility of delayed payment of retiral benefits to petitioner but the fact remain undenied that more than eight years delay is wholly unreasonable. The petitioner, a retired employee, had no role whatsoever except of suffering the cause.

11. As already said, pension is not a bounty but a right of employee who has served the employer for long and is entitled for retiral benefits being his deferred wages. The Apex Court in D.S. Nakara (supra) has observed:-

"pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion." (Para 20).

"In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from underserved want was recognized and as a first steps pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered not master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount." (Para 22).

"Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past." (Para 28).

"Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind18717 is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered." (Para 29)

12. Withholding of pension and other retiral benefits of retired employees for years together is not only illegal and arbitrary but a sin if not an offence since no law has declared so. The officials, who are still in service and are instrumental in such delay causing harassment to the retired employee must however feel afraid of committing such a sin. It is morally and socially obnoxious. It is also against the concept of social and economic justice which is one of the founding pillar of our constitution.

13. In our system, the Constitution is supreme, but the real power vest in the people of India. The Constitution has been enacted "for the people, by the people an18717d of the people". A public functionary cannot be permitted to act like a dictator causing harassment to a common man and in particular when the person subject to harassment is his own employee.

14. Regarding harassment of a common referring to observations of Lord Hailsham in Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027 and Lord Devlin in Rooks Vs. Barnard and others 1964 AC 1129, the Apex Court in Lucknow Development Authority Vs. M.K. Gupta JT 1993 (6) SC 307 held as under:

"An Ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law....... A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it...........Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous." (para 10)

15. The above observations as such have been reiterated in Ghaziabad Development Authorities Vs. Balbir Singh JT 2004 (5) SC 17.

16. The respondents bei18717ng "State" under Article 12 of the Constitution of India, its officers are public functionaries. As observed above, under our Constitution, sovereignty vest in the people. Every limb of constitutional machinery therefore is obliged to be people oriented. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour. It is high time that this Court should remind respondents that they are expected to perform in a more responsible and reasonable manner so as not to cause undue and avoidable harassment to the public at large and in particular their ex-employees like the petitioner. The respondents have the support of entire machinery and various powers of statute. An ordinary citizen or a common man is hardly equipped to match such might of State or its instrumentalities. Harassment of a common man by public authorities is socially abhorring and legally impressible. This may harm the common man personally but the injury to society is far more grievous. Crime and corruption, thrive and prosper in society due to lack of public resistance. An ordinary citizen instead of complaining and fighting mostly succumbs to the pressure of undesirable functioning in offices instead of standing against it. It is on account of, sometimes, lack of resources or unmatched status which give the feeling of helplessness. Nothing is more damaging than the feeling of helplessness. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match inaction in public oriented departments gets frustrated and it erodes the credibility in the system. This is unfortunate that matters which require immediate attention are being allowed to linger on and remain unattended. No authority can allow itself to act in a manner which is arbitrary. Public administration no doubt involves a vast amount of administrative discretion which shields action of administrative authority but where it is found that the exercise of power is capricious or other than bona fide, it is the duty of the Court to take effective steps and rise to occasion otherwise the confidence of the common man would shake. It is the responsibility of Court in such matters to immediately rescue such common man so that he may have the confidence that he is not helpless but a bigger authority is there to take care of him and to restrain arbitrary and arrogant, unlawful inaction or illegal exercise of power on the part of the public functionaries.

17. In a democratic system governed by rule of law, the Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Whenever it comes to the notice of this Court that the Government or its officials have acted with gross negligence and unmindful action causing harassment of a common and helpless man, this Court has never been a silent spectator but always reacted to bring the authorities to law.

18. In Registered Society Vs. Union of India and Others (1996) 6 SCC 530 the Apex court said:

"No public servant can say "you may set aside an order on the ground of mala fide but you can not hold me personally liable" No public servant can arrogate in himself the power to act in a manner which is arbitrary".

19. In Shivsagar Tiwari Vs. Union of India (1996) 6 SCC 558 the Apex Court has held:

"An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will who did not soon find that he had no end but his own profit."

20. In Delhi Development Authority Vs. Skipper Construction and Another AIR 1996 SC 715 has held as follows:

"A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not mean to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."

21. Now, coming to another aspect of the matter, if retiral benefits are paid with extra ordinary delay, the Court should award suitable interest which is compensatory in nature so as to cause some solace to the harassed employee. No Government official should have the liberty of harassing a hopeless employee by withholding his/her lawful dues for a long time and thereafter to escape from any liability so as to boast that nobody can touch him even if he commits an ex facie illegal, unjust or arbitrary act. Every authority howsoever high must always keep in mind that nobody is above law. The hands of justice are meant not only to catch out such person but it is also the constitutional duty of Court of law to pass suitable orders in such matters so that such illegal acts may not be repeated, not only by him/her but others also. This should be a lesson to everyone committing such unjust act.

22. Interest on delayed payment on retiral dues has been upheld time and against in a catena of decision. This Court in Shamal Chand Tiwari Vs. State of U.P. & Ors. (Writ Petition No.34804 of 2004) decided on 6.12.2005 held:

"Now the question comes about entitlement of the petitioner for interest on delayed payment of retiral benefits. Since the date of retirement is known to the respondents well in advance, there is no reason for them not to make arrangement for payment of retiral benefits to the petitioner well in advance so that as soon as the employee retires, his retiral benefits are paid on the date of retirement or within reasonable time thereafter. Inaction and inordinate delay in payment of retiral benefits is nothing but culpable delay warranting liability of interest on such dues. In the case of State of Kerala and others Vs. M. Padmnanaban Nair, 1985 (1) SLR-750, the Hon'ble Supreme Court has held as follows:

"Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following months. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasized and it would not be unreasonable to direct that the liability to pay panel interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement."

In this view of the matter, this Court is of the view that the claim of the petitioner for interest on the delayed payment of retiral benefits has to be sustained."

23. In view of the above, I have no hesitation in holding that non payment of retiral benefits and others to petitioner is arbitrary and unreasonable. There was no justification at all for respondents to delay payment thereof.

24. In the circumstances, the petition is allowed. The respondents are directed to pay entire retiral dues of petitioner alongwith interest @ 10% per annum, which shall be computed from the date of his retirement till actual payment is made. This payment shall be made within two months from the date of service of this order.

25. The respondent no.1 shall also have liberty to take appropriate action against the officials found responsible for such lapses and delay for payment of retiral dues. A copy of such order may also be kept on record of such officials, found responsible.

26. The petitioner shall be entitled for payment of Rs. 10,000/- as costs from the respondents.

Order Date :- 31.3.2014

LJ/-