Lilawati Mishra vs The State Of Bihar
2022 Latest Caselaw 2746 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.6852 of 2021
     ======================================================

Lilawati Mishra, Wife of Late Krishna Kumar Mishra, Resident of Village- Arsandey, P.S.- Kanke, District- Ranchi.

... ... Petitioner/s Versus

1. The State of Bihar through Additional Chief Secretary, Road Construction Department, Old Secretariat, Patna.

2. Principal Secretary, Rural Development Department, Old Secretariat, Patna.

3. Secretary, Rural Works Department, 5th Floor, Vishveshwarya Bhawan, Bailey Road, Patna.

4. Secretary, Public Works Department, Shastri Nagar Road, Rajvanshi Nagar, Patna.

5. Secretary, Road Construction Department, Old Secretariat, Patna.

6. Deputy Secretary, Road Construction Department, Old Secretariat, Patna.

7. Special Secretary, Road Construction Department, Old Secretariat, Patna.

8. Chief Engineer, Road Construction Department, Old Secretariat, Patna.

9. Engineer in Chief cum Additional Secretary cum Special Secretary, Road Works Department, 5th Floor, Vishveshwarya Bhawan, Bailey Road, Patna.

10. The Chief Engineer, Public Works Department, Government of Bihar, Patna.

11. The Engineer-in-Chief cum Secretary, Rural Engineering Organization, Patna, Bihar, The State of Jharkhand through Principal Secretary, Rural Work Department, Ranchi, Jharkhand.

12. Principal Secretary, Road Construction Department, Ranchi, Jharkhand.

13. The Executive Engineer, Rural Works Department, Works Division, Ranchi.

14. Special Secretary, Road Construction Department, Jharkhand, Ranchi.

15. Deputy Secretary, Road Construction Department, Jharkhand, Ranchi.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Anurag Saurav, Advocate Mr. Abhinav Alok, Advocate Mr. Priyajeet Pandey, Advocate For the Respondent/s : Mr. Manoj Kumar Ambastha, S.C. 26 Mr. Dev Kumar Pandey, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 11-05-2022 Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

The following questions arise for consideration in the

instant writ petition:-

1. Whether denial of earned remuneration and post retiral benefits constitute an infringement of the right to life under Article 21 of the Constitution of India?

2. Whether the acts of the State in delaying the disbursement of retiral benefits can be countenanced given the established notion of the State as a Model Employer?

3. Whether a case is made out for punitive damages/heavy cost in the instant set of facts in light of the inordinate lapses?

4. Whether the State is obligated to constitute an effective grievance redressal mechanism with respect to payment of legitimate dues of a salaried employee, including pension and other post retiral benefits, to ensure that earned dues are disbursed on time?

FACTS

2. The petitioner namely Lilawati Mishra (referred to as

the petitioner) is the wife of late Shri Krishna Kumar Mishra

(hereinafter referred to as the employee), whose salary in arrear

and non-disbursement of retiral benefits are the subject of this

petition.

3. The employee was appointed as a Temporary Estimator

on 05.12.1961 and joined the office of Superintending Engineer

Chhotanagpur Circle. After a series of internal and Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

interdepartmental postings in several districts such as the office

of Executive Engineer, Ranchi Division, Rajendra Agriculture

College, Pusa, etc., he was promoted to the post of Assistant

Engineer in1994 and was to join the office of Executive

Engineer, Advance Planning Division, Munger Road

Construction Department, but since his joining was not

accepted, was ultimately allowed to retire on 31.12.1996,

without getting such posting.

4. The first communication with respect to payment of

arrears of salary, pension and post retiral benefits was to the

Engineer-in-Chief-cum-Secretary, Rural Engineering

Organization, Patna, Bihar, on 04.01.1997. Since then, letters to

many of the respondents were written by the employee during

his lifetime and by the petitioner (annexed with the petition).

Such letter, Annexure-2 to the writ petition, contains details of

salary arrears totalling ten years, nine months and 13 days.

5. It is to be noted that even before superannuation of the

employee, a letter was written by the then Executive Engineer,

Rural Engineering Organization, Works Division, Ranchi to

Engineer-in-chief-cum-Additional Commissioner-cum-Special

Secretary, Rural Engineering Organization, Bihar Patna

(Annexure-3 to the writ petition) putting onto paper the various Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

periods for which the employee was not paid his earned

remuneration. Further requesting the concerning authority to

initiate said payment, keeping in view the approaching date of

superannuation, i.e. 31.12.1996.

6. A number of inter-departmental communications were

undertaken to verify the papers, service book etc., of the

employee, which, according to the petitioner, stood already

submitted, but to no avail. Such facts evident from Annexure 9

dated 18.01.2011, Page-45, remain uncontroverted by the State.

The last pay certificate and other related documents were also

sent to the Executive Engineer, Works Division, Ranchi, on

17.01.2011.

7. The further representation made on 07.04.2011

(Annexure-11, page-47) resulted in other interdepartmental

communications. On 01.04.2013, another representation was

made before respondent no.5 herein (Annexure-20, page-60),

but despite all these communications, no resolution of their

demands/needs were forthcoming.

8. Ultimately, the employee died in 2017, not receiving

any of the amounts due to him.

9. This writ petition was filed on 06.03.2021 for a writ of

mandamus to the respondents' authorities for payment of retiral Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

benefits and arrears in salary and interest.

10. The delay in filing the writ petition has not escaped

this Court. However, in light of the attending facts, it cannot

impede the petition's adjudication on merits.

11. A counter affidavit has been filed, noticeably after

considerable delay by respondent no.6, namely Deputy

Secretary, Road Construction Department, Government of

Bihar, Patna, on behalf of the State on 25.04.2022. In such

counter affidavit, it is stated that all possible efforts are being

taken for the redressal of grievance of retiral dues of the

deceased employee. Prior to the filing of this writ petition, the

last communication was 01.11.2013 by the Secretary, Road

Construction Department, Government of Bihar to the Principal

Secretary, Rural Works Department, Jharkhand, Ranchi,

requesting to make available the complete pension papers along

with no dues certificate of the employee (Annexure-A to the

counter affidavit).

12. Further explaining the delay, subsequently, a series of

departmental memos were issued and one such being dated

27.10.2021 to the Accountant General, Bihar, Patna, seeking a

report regarding the issuance of an authorization letter of

pension/gratuity of the deceased employee. Also to the in charge Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

officer, Finance (D.C.F.C.), Department, Patna, regarding

issuance of sanction letter of utilized earned leave of the

deceased employee; and to the Executive Engineer, Rural Works

Department, Works Division, Ranchi to supply duly filled

pension papers, service history, last pay record, departmental no

dues certificate, housing no dues certificate and duly filled up

form for withdrawal of G.P.F. along with relevant information of

Group Insurance Amount. A similar memo for documents was

sent to the Executive Engineer, Region Survey Advance

Division, Road Construction Department, Munger.

13. Attempting, with the above issued memos, to show

the efforts being taken, it is prayed for on behalf of "the State"

to "dismiss the present writ petition".

14. The petitioner filed a response to the counter-affidavit

on 27.04.2022, annexing the service book, stating that the same

to have been submitted to the relevant authority way back in the

year 2011 itself.

15. It is also noted therein that the respondents have not

made any effort to deny the bonafide employment of the

petitioner's late husband or his having served the State, thus

entitling him to the dues in issue.

16. Significantly, it is not the respondents' case that the Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

employee in question was facing any inquiry/disciplinary

proceedings; not diligent, or there being any other justifiable

reasons for withholding the dues. Also, there is no dispute about

the amount and the period to which the employee is entitled to

salary; pension; gratuity; and all other admissible dues still

payable.

LAW

17. The law with regard to pension, retiral dues has been

laid down in a number of cases by Hon'ble the Supreme Court.

Right to a sum of money as salary and consequential dues is property under the Constitution of India

18. A Five Judges Bench of the Apex Court in State of

Madhya Pradesh v. Ranjojirao Shinde & another, AIR

1968 SCC 1053, has observed:

"It is obvious that a right to a sum of money is property"

19. A Seven Judges Bench of the Apex Court in

Madan Mohan Pathak and another v. Union of India and

others, (1978) 2 SCC 50 observed:

"... The right to pension was also regarded as property for the purpose of Article 19(1)(f) by the decisions of this Court in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330 : 1971 Supp SCR 634] and State of Punjab v. K.R.

Erry & Sobhag Rai Mehta [(1973) 1 SCC 120 : (1973) 2 SCR 405] . This Court adopted the same line of reasoning when it said in State of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad [(1974) 4 SCC 656 : (1974) 3 SCR 760] (SCC, p. 664, para 19) that Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

"unpaid accumulations represent the obligation of the employers to the employees and they are the property of the employees. Mathew, J., speaking on behalf of the Court, observed that the obligation to the employees owed by the employers was 'property from the standpoint of the employees'."

It would, therefore, be seen that property within the meaning of Article 19(1)(f) and clause (2) of Article 31 comprises every form of property, tangible or intangible, including debts and choses-in-action, such as unpaid accumulation of wages, pension, cash grant and constitutionally protected Privy Purse. The debts due and owing from the Life Insurance Corporation in respect of annual cash bonus were, therefore, clearly property of Class III and Class IV employees within the meaning of Article 31, clause (2). And so also was their right to receive annual cash bonus for the period from the date of commencement of the impugned Act up to March 31, 1977, for that was a legal right enforceable through a Court of law by issue of a writ of mandamus. (Vide the observations of Hegde, J., at p. 194 in the Privy Purse case.)"

20. Prior to the 44th Amendment of the Constitution,

which led to the repeal of Article 31, by virtue of the

Constitution (44th Amendment) Act, 1978, a Constitution

Bench (Five Judges) of the Apex Court in Bombay Dyeing &

Manufacturing Co. Ltd. v. The State of Bombay and others,

AIR 1958 SC 328, held - unpaid wages of an employee, so

earned by him, would become a debt due to him from the

employer and as such was a property which could be assigned

under the law. The observation was made in the context where,

under the provisions of the Bombay Labour Welfare Fund Act,

unclaimed accumulated wages of employees working with

several private entities, stood transferred to a body constituted Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

under the said Act. The context being different but the principle

of the unpaid wage of an employee, so earned by him, is a

property continued to be reiterated, even subsequently, by

another Constitution Bench (Five Judges) of the Apex Court in

Maharana Shri Jayvantsinghji Ranmalsinghji v. The State

of Gujarat and others, AIR 1962 SC 821.

21. With repeal of Article 31, right to property

continued to remain as Constitutional Right, by virtue of

insertion of Article 300A.

Article 21 - Right to life- Receipt of wages/salary/dues is one such facet.

22. A Constitution Bench (Five Judges) of the

Hon'ble Supreme Court of India in Olga Tellis and others v.

Bombay Municipal Corporation and others, (1985) 3

SCC 545, has held that right to livelihood, which

is comprehended in the right guaranteed by Article 21 of the

Constitution, cannot be deprived, except according to the

procedure established by law.

23. The principles laid down by the Apex Court in Olga

Tellis (supra), stand reiterated by a Constitution Bench (Nine

Judges) in Justice K.S. Puttaswamy (Retd.) & another v.

Union of India and others, AIR 2017 SC 4161, in the

following terms:

Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

"114. In Olga Tellis v Bombay Municipal Corporation195, Chandrachud C J, while explaining the ambit of Article 21 found a rationale for protecting the right to livelihood as an incident of the right to life. For, as the Court held, deprivation of livelihood would result in the abrogation of the right to life: "148. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the 195 (1985) 3 SCC 545 PART I 111 life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life..."

(Emphasis supplied)

24. In M/s Shantistar Builders v. Narayan Khimalal

Totame & others, (1990) 1 SCC 520, the Hon'ble Apex Court

held:

"9. Basic needs of man have traditionally been accepted to be three - food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect - physical, mental and intellectual. The Constitution aims at ensuring fuller Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire- proof accommodation."

(Emphasis supplied)

25. That 'right to life' includes 'right to livelihood'

stood settled way back in by a Constitution Bench of the

Apex Court in the year 1991. In Delhi Transport Corporation

v. D.T.C. Mazdoor Congress & others, 1991 Supp(1)

SCC 600, while dealing with the constitutional

validity of Regulation 9(b) of the Delhi Road

Transport Authority (Conditions of Appointment and

Service) Regulations, 1952, enabling the employer to

terminate services of the employee by issuance of one

month notice or payment in lieu thereof, the Court held that:

"262. The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them."

"316. ...It would, further, be held that right to public employment which includes right to continued public employment till the employee is superannuated as per rules or compulsorily retired or duly terminated in accordance with the procedure established by law is an integral part of right to livelihood which in turn is an integral facet of right to life assured by Art. 21 of the Constitution. Any procedure prescribed to deprive such a Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

right to livelihood or continued employment must be just, fair and reasonable procedure. In other words an employee in a public employment also must not be arbitrarily unjustly and unreasonably be deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure..."

(Emphasis supplied)

26. It was further held that income is the foundation of

many fundamental rights and when work is the sole source of

income, the right to work becomes as much fundamental and

fundamental rights can ill-afford to be consigned to the limbo

of undefined premises and uncertain applications.

27. That right to life, enshrined in Article 21, would

include right to livelihood, stood reiterated by the Apex

Court in D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC

259, in the following terms:

"12. ...Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence..."

28. In Chameli Singh & others v. State of U.P. &

another, (1996) 2 SCC 549 (Three Judges), the Apex Court

observed:

"8. ...Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education medical care and shelter. These are basic human rights known to any civilised society..."

Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

29. A salaried person by and large depends upon

income from salary for his sustenance and sustenance of

his family and if he is not paid salary despite working for a long

period, will it not affect his life and liberty? This amounts

to denial of basic human rights of a citizen and would

also amount to deprivation of his life and liberty

guaranteed to every citizen under Article 21 of the

Constitution. (Professor Devendra Mishra v. University of Delhi,

167 (2010) DLT 259).

30. Income of a person is the cornerstone of many of his

fundamental rights. This can be interpreted to mean that

receiving of income is a foundational feature of the Right

to Livelihood. Thereby, it becomes obvious that a deprivation

of income on part of the State directly violates the Right to Life

under Article 21.

31. The State through its inaction has thwarted self-

development of the employees and his family who were

deprived of their hard earned money. After all, a man may use

his income for purposes other than the three basic needs which

have been mentioned in Shantistar (supra). Thereby the state

prevented the welfare of its own citizens which goes against the

core objectives of a welfare state like India. Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

32. There is multiplicity of legislations whereby the state

has imposed a duty on varied Departments to ensure that

their employees enjoy a decent standard of living.

Procedure for timely disbursement is prescribed and the

employee un-refutingly complied with the same. Therefore,

when the State did not disburse the salaries to its employees

despite having the money in its coffers, money which was

ready to be disbursed, it was clearly engaging in practicing

double standards.

33. The State through its administrative inaction has

clearly desecrated the dignity which is inherent in its employees.

Thereby, the State has also acted contrary to the provisions of

Chapter IV and Chapter IV A of the Constitution of India. In

Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd.,

(1984) 3 SCC 369l, Hon'ble the Apex Court observed-

"16. Article 37 provides that "the provisions contained in Part IV -- Directive Principles of State Policy, shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws". Article 41 provides that "the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want".

Article 43 obligates the State "to secure, by suitable legislation to all workers, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure...Pension and gratuity are both retiral benefits Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

ensuring that the workman who has spent his useful span of life in rendering service and who never got a living wage, which would have enabled him to save for a rainy day, should not be reduced to destitution and penury in his old age. As a return of long service he should be assured social security to some extent in the form of either pension, gratuity or provident fund whichever retiral benefit is operative in the industrial establishment. It must not be forgotten that it is not a gratuitous payment, it has to be earned by long and continuous service."

34. It can clearly be seen that none of the three

basic needs of man mentioned in Shantistar (Supra) can be

acquired without monetary power. Thereby, through its

inaction the state has clearly exhibited a lethargic and

callous, attitude towards disbursal of its mandated duties.

Therefore, the inaction of the state clearly enables a

violation of the Right to Life as mandated under the

Constitution of India.

35. Coming to the facts of the present case, an employee,

i.e., a salaried person primarily depends upon his income from

salary for the purpose of subsistence of his family. In our

considered view, if such a salaried person is not paid his due and

admissible salary despite having zealously worked and served

the State, the same will obviously affect his life and liberty. This

definitely would amount to denial of basic human rights of a

citizen and would violate fundamental right of life and liberty Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

guaranteed to a citizen under Article 21 of the Constitution of

India.

36. Therefore, by arbitrarily denying wages to the

employee right to livelihood was denied by the State

without following the procedure established by law, which in

our considered view, is a blatant violation of Article 21 of the

Constitution of India.

Statutory Right Of Receiving Pension

37. The Apex Court in State of W.B. v. Haresh

C.Banerjee & others, (2006) 7 SCC 651, has held that

pension is not a bounty payable on the sweet will and the

pleasure of the Government and to receive pension is a

valuable right of a government servant, is a sell-settled legal

proposition.

38. Pension, as is well established, is the deferred

portion of the compensation for rendering long years of

service. It is a hard-earned benefit, accruing to an employee

in the nature of property. [State of Jharkhand v. Jitendra

Kumar Srivastava, (2013) 12 SCC 210; Veena Pandey

versus Union of India & Others, 2021 SCC Online SC

1078]

39. Emphasizingly, the Hon'ble Supreme has held that Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

pensionary provisions must be given liberal construction

more so as a social welfare measure. It is not a bounty to be

dispersed contrary to the rules, but very basis for grant of

such pension is to facilitate a retired government employee,

live with dignity, in the winter of his life. This fundamental

principle must be kept in mind while taking action, depriving

benefits which ought not to be done, unreasonably, more so,

on technicalities. [V. Sukumaran v. State of Kerala, (2020) 8

SCC 106; State of W.B. v. Haresh C. Banerjee and others,

(2006) 7 SCC 651]

40. We may only extract, for benefit, both of the employer

and the employee, as to how another Constitution Bench of the

Hon'ble Supreme Court elucidated the principles behind the

policy for grant of pension in D.S. Nakara v. Union of India,

(1983) 1 SCC 305.

"19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.

20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330 : AIR 1971 SC 1409 : 1971 Supp SCR 634 : (1971) 1 LLJ 557] wherein this Court Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

authoritatively ruled that 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. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh. [(1976) 2 SCC 1 : 1976 SCC (L&S) 172 : AIR 1976 SC 667 : (1976) 3 SCR 360]

21. There are various kinds of pensions and there are equally various methods of funding pension programmes. The present enquiry is limited to non-contributory superannuation or retirement pension paid by Government to its erstwhile employee and the purpose and object underlying it. Initially this class of pension appears to have been introduced as a reward for loyal service. Probably the alien rulers who recruited employees in lower echelons of service from the colony and exported higher level employees from the seat of Empire, wanted to ensure in the case of former continued loyalty till death to the alien rulers and in the case of latter, an assured decent living standard in old age ensuring economic security at the cost of the colony.

22. 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 undeserved want was recognised and as a first step 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 unto 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 (see Retirement Systems for Public Employees by Bleakney, p. 33)."

(Emphasis supplied)

Right To Receive Gratuity Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

41. Gratuity has also been held to be a statutory

right which cannot be taken away. (Allahabad Bank

Retirees Assn v. All India Allahabad Bank Retired

Employees Association (2010) 2 SCC 44); Secretary,

ONGC Limited and another v. V.U. Warrier, (2005) 5

SCC 245).

Lack of funds cannot a ground for non-disbursement of salary/emoluments

42. In Kapila Hingorani v. State of Bihar, (2003) 6

SCC 1, the Apex Court has observed as under:

"30. The Government companies/public sector undertakings being 'states' would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the constitution of India. They, therefore, must do so in cases of their own employees. The government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it but having regard to the deep and pervasive control it exercises over the Government companies; in the matter of enforcement of human rights and/or rights of the citizen of life and liberty, the State has also an additional duty to see that the rights of employees of such corporations are not infringed.

31. The right to exercise deep and pervasive control would in its turn make the Government of Bihar liable to see that the life and liberty clause in respect of the employees is fully safeguarded. The Government of the State of Bihar, thus, had a constitutional obligation to protect the life and liberty of the employees of the government-owned companies/corporations who are the citizens of India. It had an additional liability having regard to its right of extensive supervision over the affairs of the company."

"71. The States of India are welfare States. They having regard to the constitutional provisions adumbrated Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

in the Constitution of India and in particular Part IV thereof laying down the Directive Principles of the State Policy and part IVA laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity."

(Emphasis supplied)

43. Further, the Apex Court in Kapila Hingorani v.

State of Bihar, (2005) 2 SCC 262, has held that the

employees have a human right as also a fundamental right

under Article 21 which the States are bound to protect.

Even where the public sector undertakings were unable to pay

the salaries of its employees, the Apex Court directed the State

to disburse the same on the basis of the aforesaid principle. We

see it fit to quote as under:-

"37. We make it clear that we have not issued the aforementioned directions to the States of Bihar and Jharkhand on the premise that they are bound to pay the salaries of the employees of the public sector undertakings but on the ground that the employees have a human right as also a fundamental right under Article 21 which the States are bound to protect. The directions, which have been issued by this Court on 9-5-2003 [(2003) 6 SCC 1 : 2004 SCC (L&S) 586] as also which are being issued herein, are in furtherance of the human and fundamental rights of the employees concerned and not by way of an enforcement of their legal right to arrears of salaries..."

(Emphasis supplied)

44. We notice that the Court was dealing with a case,

where salaries of several employees of instrumentalities owned

by the State were not disbursed and on the basis of news paper Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

report a public spirited citizen, a Supreme Court lawyer, had

invited attention of the Court to the apathy on the part of the

State.

45. Financial difficulties of employer cannot be a ground

for non-payment or delayed payment of wages to workmen.

Obviously, the State has not pleaded financial bankruptcy. Also

it has not sought exercise of power declaring financial

emergency envisaged under Article 360 of the Constitution of

India.

State - a Model Employer

46. The Apex Court in State of Jharkhand and

another v. Harihar Yadav and others, (2014) 2 SCC 114,

observed:

"52. Having regard to the position that has emerged, we are compelled to dwell upon the role of the State as a model employer. In Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449, Krishna Iyer, J., has stated thus: -

"Social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt."

53 In Gurmail Singh and others v. State of Punjab and others, (1991) 1 SCC 189 it has been held that the State as a model employer is expected to show fairness in action.

54. In Balram Gupta v. Union of India and Another, Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

1987 Supp1 SCC 228 the Court observed that as a model employer the Government must conduct itself with high probity and candour with its employees.

55. In State of Haryana v. Piara Singh, (1992) 4 SCC 118 the Court has ruled that the main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.

56. In Bhupendra Nath Hazarika and another v. State of Assam and others, (2013) 2 SCC 516 while laying emphasis on the role of the State as a model employer, though in a different context, the Court observed:

"65.......It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized."

"57. If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracized the concept of "model employer". It would not be wrong to say that they have done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision..........."

Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

47. The Corporate and Industrial Houses are

expected by the Indian State to take measures which

provide a decent standard of living to members of the

society generally and more specifically, to their employees.

Therefore, the State has the duty to set an example of

being a model employer to its employees. If State does

itself does not give salary to its employees for their hard

work then how can it be expected that the private

entrepreneur will take care of their employees.

Litigation Policy Of State

48. We notice that State has formulated a Litigation

Policy with the avowed object of not only reducing litigation,

saving avoidable cost on unproductive litigation; but also

reducing avoidable load on judiciary with respect to

Government induced litigation. This is in tune with the

mandate of Article 39-A of the Constitution of India,

obligating the State to promote equal justice. Now, if the

employees are not paid their salaries within time, obviously,

they are left with no remedy but to rush to the Courts.

49. Of late, litigation pertaining to employees of the

State has increased and it is not that State is the petitioner.

The action assailed is of mis-governance or avoidable Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

omissions on the part of the Government. Why should the

State force an employee to litigate in a case where

emoluments/salaries, which are undisputed, are not disbursed

in time.

50. In the light of the recommendation of 13 th Finance

Commission, the State of Bihar has formulated the State

Litigation Policy, 2011, notified on 31st March 2011. The Policy

is comprehensive, self speaking and self serving, though,

perhaps, with the passage of time, may require a review. Be that

as it may, as of date, the said policy is binding, more so, on the

employer. The object of the policy is to "transform the State

Government into an efficient and responsible litigant" and also

to deal with the genuine grievances of the employee with

reasonable dispatch. In the Policy, the State terms itself to be a

'responsible litigant' and for that term to mean - "(a) That

litigation will not be resorted to for the sake of litigating. (b)

That false pleas and hyper-technical points will not be taken and

shall be discouraged. (c) Ensuring that the correct facts and all

relevant documents are placed before the Court. (d) That

nothing shall be suppressed from the court and there will be no

attempt to mislead any court or Tribunal."

51. As per clause 1.2, the Policy is based on the Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

recognition "that it is the responsibility of the Government to

protect the rights of the citizens, to respect fundamental rights

and that those in charge of the conduct of the Government

litigation should never forget these basic principles."

52. In terms of clause 1.3 underlying objective of the

Policy is also to reduce pressure on "the overloaded judiciary

and expedite dispensation of justice."

53. Clause 2 of the Policy provides for establishment of a

mechanism, though not termed, but in the nature of pre-

litigation consideration/resolution of the dispute. At various

levels, the Empowered Committee is mandated to be

constituted, enabling the employees to vent out their grievances

prior to initiation of litigation.

54. Part IV of the said Policy deals with prevention of

avoidable litigation. The relevant portion thereof is extracted as

under:-

                         "IV. PREVENTION/CONTROL             OF    AVOIDABLE
                         LITIGATION
                                                      A

4. A Setting up Grievance Redressal System

4. A(1). Very often the major causes of litigation involving the State Government are from arbitrariness in decision making or non application of mind or non- response/ improper response to representations made by employees, including retired employees/ parties. It is seen that in most cases in respect of service matters the cause of action arises out of relief not being given as per the Rules, Government instructions or policy decisions as are in force. It is also seen that in most cases before the matter reaches the Court the affected Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

party undeservedly spends a lot of his time and effort over redressal of his grievance through normal administrative channels. In this situation all Departments of the State Government shall set up effective Grievance Redressal Committees in order to pre-empt a large number of avoidable litigation.

4. A (2). It shall be mandatory for employees, including those retired, to seek redressal, at the first instance, through this system before approaching the Courts.

4. A(3). A time limit of eight weeks or so may be fixed for deciding such representations.

4. A(4). Such Grievance Redressal Committees shall be set up in each Department at the State Level, District Level and Sub-Divisional Level and each of them shall have a Grievance Cell. All cases and issues at the request of the aggrieved party shall be reviewed to redress genuine grievances.

4. A(5) The Department Level Grievance Committee shall be headed by the Principal Secretary/ Secretary of the Department concerned and shall meet once a month to review the efficiency of the Grievance Redressal System in the Department. Similarly at the District and Sub-Divisional Level, the Committee shall be headed by the District Magistrate or Sub Divisional Officer, as the case may be. The District Sub Divisional Level Grievance Redressal Committees shall meet once every month on the first Tuesday of each month; if this is a holiday, the Committee will meet on the next working day excluding "Janata ka Darbar" days, i.e., Mondays and Thursdays. Where it is found that certain Government instructions require to be reviewed, it shall refer the same to the State Level Empowered Committee. As seniority matters are a major source of litigation these shall be resolved expeditiously by the Department and seniority lists should be updated, printed and published regularly.

B

4. B. Quick Action on Representations/ Legal Notices

4.B(1). A legal notice is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. Nowadays such notices have become a formality. When such a legal notice is served upon any Department asking for the relief the same should be decided expeditiously in accordance with the prevalent Rules/ Instructions and by a detailed speaking order. Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

Timely response would avoid waste of public money and promote expeditious work in Court in cases which deserve to be attended to.

4. B(2). While passing orders in original jurisdiction or in appeals in respect of disciplinary proceedings a detailed speaking order should be passed. It is the bounden duty of the enquiry officer to follow all the prescribed procedures for conducting the enquiry so that no lapse occurs in the procedural parts and orders are not set aside on that ground and the matter is remanded back for fresh decision. Officers should be trained periodically in these aspects.

4.B(3). While deciding cases relating to seniority of employees, the decision should be taken promptly and strictly in accordance with the Rules so that the interest of the employees is not jeopardized due to a delayed decision. ..."

(Emphasis supplied)

55. It seems that the Policy was never put to practice, for,

had it been so, all adjudicatory forums, including this Court

would not have been flooded with litigation. The information

obtained from the Registry reveals that 39,000 (approx.) [36,596

(Group 13, 14 and 15) original + 2191 (LPA)] cases pertaining

to the employees' dispute with the State Government/ its

instrumentalities are pending consideration before this Court.

Methods of alternative dispute resolution must be implemented

so as to reduce this number so far as possible.

56. The Hon'ble Supreme Court speaking through

Hon'ble Mr. Justice M.M. Shantanagoudar in High Court of

Judicature at Madras Rep. by its Registrar General v. M. C.

Subramaniam & Ors., (2021) 3 SCC 560, held that:-

"13. The provisions of Section 89 CPC must be Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

understood in the backdrop of the longstanding proliferation of litigation in the civil courts, which has placed undue burden on the judicial system, forcing speedy justice to become a casualty. As the Law Commission has observed in its 238th Report on Amendment of Section 89 of the Code of Civil Procedure, 1908 and Allied Provisions, Section 89 has now made it incumbent on civil courts to strive towards diverting civil disputes towards alternative dispute resolution processes, and encourage their settlement outside of court (Para 2.3). These observations make the object and purpose of Section 89 crystal clear -- to facilitate private settlements, and enable lightening of the overcrowded docket of the Indian judiciary. This purpose, being sacrosanct and imperative for the effecting of timely justice in Indian courts,..."

(Emphasis supplied)

57. The importance and fundamental nature of salary and

other emoluments to be paid to an employee place an obligation

upon the machinery of the State to ensure that such cases where

the claims are bonafide and genuine, do not get delayed as a result

of the judicial process and pendency and that they should be

resolved at the pre-litigation stage itself.

58. An employee has a constitutional right to receive

wages/ salary/emoluments/retiral benefits within time, so also

State is under a constitutional obligation and duty to disburse

the same.

59. In the instant case, the law, as discussed above,

renders the path clear. The Husband of the petitioner,

employee herein, rendered services for a period of thirty-four

years from 12.05.1961 to 31. 12. 1996. It is an admitted Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

position, as evidenced by Annexure-3, page-34, dated

22.11.1996, that dues of the various period were to be paid to

the employee, which was never done. Post-retirement, the

employee and later the petitioner made several

representations to various authorities over the year for

disbursal of arrears in salary and retirement benefits which

unfortunately fell on deaf ears. It is saddening that the

employee was denied the enjoyment of the fruits of his labour

only on account of procedural wrangles and back and forth of

bureaucratic channels and for no fault of his.

60. The counter affidavit filed by the State admits that

despite the passage of twenty-five years, pension papers and

other no dues certificates have yet not been prepared. It is

only six months after the filing of the present writ petition

that the State now wishes to ascertain the facts vide

communications dated 27.10.2021, Annexure-B to E, from

different authorities. It is further noted, as on the date of filing

of the said counter affidavit, i.e. 25.04.2022, no responses to

such departmental memos are reflected from the record. Such

a callous and lax attitude on the part of the State which has

been held by Hon'ble the Supreme Court to be a model

employer does not fit the description.

Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

61. With the passage of several years, from the

employee's superannuation to the payment of post retiral

benefits resulting from this order, it would no longer serve the

cause of justice if the State is let off by doing just that.

62. Hon'ble the Supreme Court in Nalabati Behera v.

State of Orissa, (1993) 2 SCC 746, while discussing the

public law remedy of compensatory or exemplary damages

held as under:-

"34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law."

(Emphasis supplied)

63. It has also been recognized by Hon'ble a bench of

Hon'ble Allahabad High Court headed by Hon'ble Chief Justice

Dr. D. Y. Chandrachud [as His Lordship then was] in Rekha

Devi v. State of Uttar Pradesh, Civil Writ No.24947 of 2014

decided on May 2, 2014, that a High Court is not powerless to

issue exemplary damages under Article 226 of the Constitution

of India.

64. Plenary power of this Court under the Constitution is

wide enough.

65. Therefore, in the considered opinion of this Court, the

petitioner is not only entitled to arrears in salary (para 4), post-

retirement benefits along with interest as per law thereupon, but

also punitive damages/costs on the ground of inordinate delay

and for having had to run from pillar to post to get the earned

dues.

66. Questions of law answered hereinunder:

1. Whether denial of earned remuneration and post retiral benefits constitute an infringement of the right to life under Article 21 of the Constitution of India? Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

67. Hon'ble, the Supreme Court has, as discussed above,

held in several judgments that salary and equally post retiral

benefits, which have been duly earned, are rights vesting in such

employee. Denial of wages and post retiral benefits in the

instant case is a classical case of infringement of Article 21,

owing almost entirely to the indifferent attitude of the State

towards its employees and former employees. In M/s

Shantistar Builders (supra), the three primary actions of

human existence have been listed, and in D. K. Yadav (supra),

livelihood is recognized as a facet of Article 21.

2. Whether the acts of the State in delaying the disbursement of retiral benefits can be countenanced given the established notion of the State as a Model Employer?

68. The State, in its myriad of functions, is not only an

employer but is also a lawmaker. The lawmaker has stipulated

various methods to regulate employment, balancing the interest

of both the employer and the employee, conceiving redressal

mechanisms to ensure timely resolution of disputes, and

evolving ways to protect the vulnerable party in a particular

transaction. In the instant case and many other such cases, the

State itself has laid waste to its own rules and regulations- Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

calling into question the very basis of such laws and regulations.

69. As the stipulated model employer, it is incumbent

upon the State to ensure the proper application of such

regulations to set an example for other entities. This

responsibility has clearly been abdicated.

3. Whether a case is made out for punitive damages/heavy cost in the instant set of facts in light of the inordinate lapses?

70. Hon'ble the Supreme Court held that exemplary

damages are awarded in cases where the right to life under

Article 21 has been grossly infringed. In the instant case, the

petitioner's husband retired in 1996, which is 25 years ago.

However, till today, documents disbursement of salary,

including gratuity and pension etc., are being sought from

various departments. Hence the answer has to be in the

affirmative.

71. This Court further takes strong exception to the State's

stand taken before this Court to dismiss the present petition in

light of the light of recent efforts being made, evidenced by the

numerous memoranda issued on 27.10.2021.

72. In the considered view of this Court, this case is fit for

an award of exemplary damages/costs over and above the dues Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

of the petitioner's husband, to the tune of Rs.5,00,000/- (Rupees

Five Lacs).

4. Whether the State is obligated to constitute an effective grievance redressal mechanism with respect to payment of legitimate dues of a salaried employee, including pension and other post retiral benefits, to ensure that earned dues are disbursed on time?

73. As already discussed, India is a welfare State and

has been termed a model employer. The directive principles

of State policy which are fundamental to the governance of

the State, impose an obligation upon the State to ensure a

living way and decent standard of living. Further, it has been

observed that a salaried person is almost entirely dependent

upon the same, and delay or denial would impede such

obligation infringing the very core of Article 21 guaranteeing

a dignified existence.

74. Considering the large number of such cases filed

before this Court, it would be appropriate in our view to ask

the Chief Secretary to conceive an accessible and easy

mechanism for timely redressal of salary and pension-related

grievances. Such a mechanism developed with a holistic view

will go a long way in extinguishing the need for an aggrieved Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

person to knock on the doors of justice.

75. In the light of the discussion above, we dispose of

the writ petition in the following manner:-

(a) The respondents-authorities shall positively pay the

entire amount constituting unpaid salary, gratuity,

pension etc., to the writ petitioner, namely Lilawati

Mishra, within two months from today. The

Department's principal Secretary shall file an

affidavit of compliance within two months from

today. For compliance the matter be listed on

12.07.2022.

(b) Petitioner shall be entitled to interest on such

amounts @ 18% per annum or the prevalent

statutory interest, whichever is lower.

(c) Also, She shall be entitled to an exemplary cost

quantified at Rs.5,00,000/- (Rupees five lacs). It

shall be open for the State to recover the same from

the erring officials.

(d) The Chief Secretary to the Government shall ensure

that the mechanism in terms of the Bihar State

Litigation Policy, 2011 is not only put in place, but

also made effectively functional. He shall also Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

endeavour to provide further mechanism, enabling

the employees to vent out their grievances, be it of

whatever nature. One such tool is setting up a 'Web

Portal' at the level of the Principal Secretary/

Secretary of the concerned Department(s), where

the employees can lodge their

grievances/complaints. Such grievances/

complaints shall be processed and adequately

responded to within a reasonable period. This

would facilitate speedy redressal of genuine

grievances and prevent unnecessary litigation,

clogging the wheels of the administration of

justice. Such endeavour shall only be in the spirit

of Litigation Policy, framed by the State

Government. We see a significant advantage in the

use of information and technology. It would result

in effective and efficient redressal of grievances, if

any, and improve efficiency in the affairs of

governance of the State, further instilling

confidence and trust amongst the employees.

(e) It is to be noted that this Court passed similar

directions on an earlier occasion to set up a web Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

portal. However, no progress in this regard has

been reported to the Court.

(f) All Grievances Redressal Committees stipulated

under the Litigation Policy shall be made

immediately functional and operational.

(g) In the light and spirit of clause (c) of sub-section (1)

of Section 89 of the Code of Civil Procedure, an

endeavour shall be made of having the matters of

the employees resolved through the process of

judicial settlement, including settlement through

Lok Adalat. The Patna High Court Legal Services

Authority is requested to have the needful done.

(h) We direct the State to immediately undertake such a

measure at the earliest.

(i) We also request the learned Advocate General, State

of Bihar, who plays a pivotal role in the

implementation of the Litigation Policy to

undertake such a drive at the earliest. This he can

do by engaging all the stakeholders, more

specifically the Principal Secretaries of the

concerned Departments.

76. The writ petition stands disposed of with the Patna High Court CWJC No.6852 of 2021 dt.11-05-2022

aforesaid directions/observations.

77. Interlocutory Application, if any, shall stand

disposed of.

(Sanjay Karol, CJ)

S. Kumar, J. I agree.

                                                                    (S. Kumar, J)

Sunil/P.K.P
AFR/NAFR                AFR
CAV DATE                09.05.2022
Uploading Date          11.05.2022
Transmission Date