# Akhilesh Kumar Kardham and another v. The Z.B.S.A. and another

- **Citation:** (2009) 3 ILRA 1112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-03
- **Case number:** Civil Misc. Writ Petition No. 33358 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-kardham-and-another-v-the-z-b-s-a-and-another-41393
- **Pages:** 4

## Text

1112 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 33358 of 2007

Akhilesh Kumar Kardham and another

 ...Petitioners
Versus
Zila Basic Shiksha Adhikari and another

 ...Respondents

Constitution of India Article 226-Post
retirement benefits-petitioner's father
working as Head Master died in harness
on 27.08.2004-since than retire dues like
Provident Fund, Gratuity, Insurance and
arrears of family pension with held-crime
and corruption thrive and prosper in
society due to lack of public resistanceCourt expressed its great concern-having
onerous
responsibility
to
generate
confidence and strength in common
man-direction
issued
to
give
entire
amount with 10% interest per annum
from the date of filling of Writ Petition to
till the date of actual payment with cost
of Rs.10,000/-.

Held: Para 11

In view of the above the writ petition is
allowed. The respondents are directed to
release the retiral dues of the deceased
employee to the petitioners within a
period of two months from the date of
production of a certified copy of this
order alongwith interest at the rate of
10% per annum which shall be payable
from the date of filing of the present writ
petition, i.e., 23.07.2007 till the amount
is actually paid. The petitioner shall also
be entitled to cost which is quantified to
Rs. 10,000/-. However, the respondent
no. 2 shall be at liberty to make
appropriate disciplinary inquiry in the
matter and to find out the officials
responsible for such extraordinary delay
in payment of retiral benefits of the
deceased employee to the petitioners
and to realize the amount of interest and
cost awarded under this order from such
officer(s)/ employee(s) as the case may
be.
Case law discussed:
1972 AC 1027, 1964 AC 1129, JT 1993 (6) SC
307, (1996) 6 SCC 530, (1996) 6 SCC 558, AIR
1996 SC 715, 1985 (50) FLR 145.

(Delivered Hon'ble Sudhir Agarwal, J.)

1. The sole grievance of the
petitioners is that the father of petitioner
no. 1 and husband of petitioner no. 2 Late
Sri Jagat Singh, who was working as
Headmaster in Primary School died on
27.08.2004 and since then the petitioners
are requesting the respondents to pay
retiral dues of the deceased employee
like, provident fund, gratuity, insurance
and arrears of family pension etc. but till
date nothing has been done by the
respondents.

2. In the counter affidavit filed by
respondents the only defence taken is that
the matter is under consideration. It also
appears from the counter affidavit that for
the first time in 2005 the respondents
initiated the matter regarding payment of
retiral dues of the deceased employee,
passing the order dated 30.11.2005,
declaring that the suspension of the
deceased employee stands terminated on
27.08.2004 and he will be deemed to have
been reinstated on the said date for the
purpose of retiral benefits but without any
salary. Thereafter, the only factum
mentioned in the counter affidavit is that
an objection was raised by the Finance
and Accounts Officer, Basic Education,
Moradabad about the status of the
deceased employee which was clarified
by letter dated 29.08.2008 and since then
3 All] Akhilesh Kumar Kardham and another V. The Z.B.S.A. and another
1113
the
matter
is
pending
and
under
consideration.

3. Virtually there is no defence at
all. It is evident that the respondents are
simply sitting tight over the matter which
cannot be for any bona fide reasons. Once
it is not disputed that the deceased
employee was entitled for retiral dues and
the same were liable to be paid, inaction
on the part of the respondents in clearing
the dues and that too for almost more than
five years is really very serious and
deserves to be dealt with strictly.

4. The respondents should not forget
that they are employees of a statutory
body constituted under an Article of the
State Legislation. The body, constituted
'State',
under
Article
12
of
the
Constitution. The employees are the
servants of the people. Use of their power
must always be subordinate to their duty
of service. If a public functionary acts
maliciously or oppressively and the
exercise of power results in harassment
and agony then it is not an exercise of
power but it is abuse. The same would
apply to a case of inaction also i.e. where
it is bound to exercise its power but fail to
do so. An ordinary citizen or a common
man is hardly equipped to match the
might of the State, its instrumentalities or
authorities. It is the duty of the Court,
therefore,
to
check
such
arbitrary,
capricious action on the part of the public
functionaries to rescue the common man.
It is a matter of common knowledge and
judicial cognizance can be taken of the
fact that in most of the matters where the
sufferance is minor, the common man
does not even complain and silently suffer
it. He takes it as destiny or fate. The time
has come when this Court has to remind
the public authorities that harassment of a
common man is socially abhorring and
legally impermissible. It may harm the
common man personally but injury to
society is far more grievous. Crime and
corruption thrive and prosper in the
society due to lack of public resistance.
Nothing is more damaging than the
feeling of helplessness. The ordinary
citizen instead of complaint and fight
normally succumbs and surrender to the
undesirable
functioning
instead
of
standing against it. He has to be given a
confidence and strength enough to stand
and expose such illegality and apathy of
public functionaries. The Courts have
onerous responsibility to generate such
confidence and strength in common man.

5. It would also be useful to remind
the
public
functionaries
that
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.

6. Regarding harassment of a
Government
employee,
referring
to
observations of Lord Hailsham in
Cassell & Co. Ltd. Vs. Broome, 1972
AC 1027 and Lord Devlin In Rooks Vs.
Barnard 1964 AC 1129 the Apex Court
in Lucknow Development Authority Vs.
M.K. Gupta JT 1993 (6) SC 307 held as
under;
1114 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
"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..........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."

7. In Registered Society Vs. Union
of India and Others (1996) 6 SCC 530
the Apex Court held as under:

"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".

8. In Shiv Sagar Tiwari Vs.l Union
of India (1996) 6 SCC 558 the Apex
Court held as follows:

"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."

9. In Delhi Development Authority
Vs. Skipper Construction and Another
AIR 1996 SC 715 the Apex Court 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."

10. Where, the authorities have
acted negligently showing laxity and
apathy to the need of the legal heirs of the
deceased
employee
or
the
retired
employees and have delayed payment of
statutory and rightful dues, they are liable
to pay interest compensatory in nature for
the reason that such delay is nothing but
culpable delay warranting liability of
interest. In State of Kerala & others Vs.
M. Padmanabhan Nair, 1985 (50) FLR
145, the Apex Court considering delay in
payment of retiral dues to a government
servant and liability of interest of the
Government in such matter held as under:

"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
atleast 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 penal
interest on these dues at the current
market rate should commence at the
3 All] Smt. Munni V. State of U.P.
1115
expiry of two months from the date of
retirement."

11. In view of the above the writ
petition is allowed. The respondents are
directed to release the retiral dues of the
deceased employee to the petitioners
within a period of two months from the
date of production of a certified copy of
this order alongwith interest at the rate of
10% per annum which shall be payable
from the date of filing of the present writ
petition, i.e., 23.07.2007 till the amount is
actually paid. The petitioner shall also be
entitled to cost which is quantified to
Rs.10,000/-. However, the respondent no.
2 shall be at liberty to make appropriate
disciplinary inquiry in the matter and to
find out the officials responsible for such
extraordinary delay in payment of retiral
benefits of the deceased employee to the
petitioners and to realize the amount of
interest and cost awarded under this order
from such officer(s)/ employee(s) as the
case may be.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2009

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail No. 26985 of 2009.

Smt. Munni

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri V.M. Zaidi
Sri S.M.G. Asghar

Counsel for the Opposite Party:
Sri Kameshwar Singh
A.G.A.
Code of Criminal Procedure Section 439Bail-offence under Section 498-A, 304-Breadwith 3⁄4 Dowry Prohibition Act-un
natural death within 7 years from
marriage-deceased was expelled out
from her in laws application house
applicant
is
Jethani-No
specific
roll
assigned plea of alibi-High Court had
already directed to be considered as the
time of Trail-husband of applicant being
class I Officer under his influence twice
final report submitted without proper
investigation-three anti mortem injuriesfor fair Trail-not entitled for bail.

Held: Para 6

Considering the facts, circumstances of
the case, submission made by learned
counsel for the applicant, learned A.G.A.
and learned counsel for the complainant
and from the perusal of the record it
appears that it is case in which without
doing the proper investigation, the final
report was submitted by the I.O., the
same has been rejected by the learned
Magistrate concerned, the death of the
deceased has taken place within 7 years
of her marriage, it was unnatural death,
the deceased has sustained 3 ante
mortem injuries, to ensure the fair trial
and without expressing any opinion on
the merits of the case, the applicant is
not entitled for bail. The prayer for bail is
refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard Sri V.M. Zaidi, Senior
Counsel, assisted by Sri S.M.Asghar,
learned counsel for the applicant, learned
A.G.A. for the State, Sri Kameshwar
Singh, learned counsel appearing on
behalf of the complainant and perused the
record.

2. This bail application has been
moved by the applicant Smt. Munni with
a prayer that she may be released on bail
in case crime No. 247 of 2005 under