# Dharam Pal Singh v. State of U.P. and

- **Citation:** (2008) 3 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-07
- **Case number:** Civil Misc. Writ Petition No. 23571 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharam-pal-singh-v-state-of-u-p-and-41224
- **Pages:** 6

## Headnote

Constitution of India, Art. 226-Interest
on
delayed
payment
of
gratuitypetitioner retired from the post of Bore
well technician 31.12.95-10% G.P.F.
with held-total amount workout on Jan
1997 as Rs.32073/- paid amount on
19.6.08-No justification for withholding
the said amount for about 13 years-heldentitled 12% interest w.e.f. Feb., 1997
to 19.6.2008 with cost of Rs.20000/-.

Held: Para 8

In view of what has been observed in the
aforesaid judgment, which is squarely
applicable to the facts and circumstances
of the present case also, where the
respondents have not been able to show
any
justification
whatsoever
for
no
payment of balance 10% G.P.F. amount
to the petitioner within the period
prescribed in the Rules and having
caused the delay of almost 13 years in
payment thereof, this Court is satisfied
that the petitioner deserves not only
payment of penal interest on balance
10% amount of G.P.F. for the delay but
also entitled for exemplary cost.
Case law discussed:
2007 (8) ADJ 553

## Text

806 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
The Supreme Court further held:

"The decision to dispense with the
departmental inquiry cannot, therefore,
be rested solely on the ispe dixit of the
concerned
authority.
When
the
satisfaction of the concerned authority is
questioned in a Court of law, it is
incumbent on those who support the order
to show that the satisfaction is based on
certain objective facts and is not the
outcome of the whim of caprice of the
concerned officer."

6. In view of the aforesaid, I am of
the opinion that the impugned order of
termination does not contain sufficient
reasons for dispensing with the inquiry.
The charges so levelled are such, that it
can
easily
be
enquired
through
a
departmental enquiry. It is not a case
where it could be said that it was not
reasonably practicable to hold an inquiry.
In my opinion, the decision of the
disciplinary
authority
was
wholly
arbitrary.
The
reasons
given
for
dispensing with the enquiry was wholly
irrelevant. I am of the view that the
disciplinary authority has misused its
powers. Similar view was taken by me in
Dharam Pal Singh vs. State of U.P. and
others, 2005 ALJ 819 = 2005(1)ESC
566.

7. In my opinion, the charge against
the petitioner is such which can be
decided if a full fledged inquiry is held
against him under the Rules of 1991.
Consequently the invocation of the
provisions of Rule 8(2)(b) by the
authority was totally arbitrary. In view of
the aforesaid decisions, the exercise by
the authority of this provision was totally
arbitrary. Consequently, the impugned
order terminating the services of the
petitioner cannot be sustained and is
quashed. The writ petition is allowed and
the matter is remitted to the authority to
proceed from the stage prior to the
passing of the impugned order and
conclude the inquiry within a period of
six months from the date of the
production of a certified copy of this
order.

8. It has been stated at the Bar that
prior to the order of dismissal the
petitioner
was
under
suspension.
Consequently,
the
petitioner
would
remain under suspension till the disposal
of the inquiry proceedings but for the
period from the date of suspension till
today, the petitioner will neither be paid
the suspension allowance nor any arrears
for this period. Final orders on this aspect
would also be passed by the authority
after the conclusion of the inquiry and
upon passing the order of the penalty, if
any.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 23571 of 2008

Godenath Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Satyendra Singh

Counsel for the Respondents:
Sri B.K. Pandey
Sri Satish Chaturvedi
S.C.
3 All] Godenath Singh V. State of U.P. and others
807
Constitution of India, Art. 226-Interest
on
delayed
payment
of
gratuitypetitioner retired from the post of Bore
well technician 31.12.95-10% G.P.F.
with held-total amount workout on Jan
1997 as Rs.32073/- paid amount on
19.6.08-No justification for withholding
the said amount for about 13 years-heldentitled 12% interest w.e.f. Feb., 1997
to 19.6.2008 with cost of Rs.20000/-.

Held: Para 8

In view of what has been observed in the
aforesaid judgment, which is squarely
applicable to the facts and circumstances
of the present case also, where the
respondents have not been able to show
any
justification
whatsoever
for
no
payment of balance 10% G.P.F. amount
to the petitioner within the period
prescribed in the Rules and having
caused the delay of almost 13 years in
payment thereof, this Court is satisfied
that the petitioner deserves not only
payment of penal interest on balance
10% amount of G.P.F. for the delay but
also entitled for exemplary cost.
Case law discussed:
2007 (8) ADJ 553

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Satyendra Sing, learned
counsel
for
the
petitioner,
learned
Standing Counsel for the respondents no.
1, and 3 and Sri Satish Chaturvedi for the
respondent no. 2. With the consent of the
learned counsel for the parties, this writ
petition is being decided under the Rules
of the Court at this Stage.

2. The petitioner was working as
Boarwell Technician in the department of
Minor Irrigation and attained the age of
superannuation on 31.12.1995. Towards
payment of retiral benefits and provident
fund, the respondents, though paid other
dues and 90% of G.P.F. amount but
balance 10% G.P.F. amount was not paid
to the petitioner for more than a decade
despite several representations and hence,
having no other alternative, the petitioner
has approached this Court invoking
extraordinary jurisdiction under Article
226 of the Constitution by means of the
present writ petition.

3. A counter affidavit has been filed
on behalf of respondent no. 2 stating that
10% balance amount of G.P.F. along with
interest as on January 1997 determined to
Rs.32,073/- has been paid to the petitioner
vide letter dated 19.6.2008, a copy
whereof has been placed on record as
Annexure-1 to the counter affidavit. On
the face of it, the aforesaid amount, thus,
has been paid to the petitioner after
almost 13 years of his retirement. The
reason for such a delay has been sought to
be explained by respondent no. 2 in para7 of the counter affidavit stating that 10%
final
payment
was
forwarded
by
Executive Engineer, Minor Irrigation
Division, Gorakhpur vide letter dated
4.11.2004 to the respondent no. 2
whereupon an authority letter dated
21.12.204 was issued for payment of
Rs.32,073/-. However, it appears that the
said payment was not made by the
departmental authorities and when the
matter came to the notice of respondent
no. 2, it issued another authority letter
dated
19.6.32008
to
the
Executive
Engineer,
Minor
Irrigation,
District
Deoria with a copy thereof to the
Treasury Officer, Deoria and to the
petitioner and in this way, the payment
has been made.

4. Learned Counsel for the petitioner
submitted that without any valid reason or
justification, the 10% amount of G.P.F.
has been paid to him after such a long
808 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
time and that too without any interest on
the due amount on and after January,
1997. Hence, he submitted that the
petitioner is entitled for suitable penal
interest for the laxity shown by the
respondents and the writ petition deserves
to be allowed with exemplary cost.

5. On behalf of respondents no. 1
and 3, they have not chosen to file any
counter affidavit. The respondent no. 2
has also not been able to disclose any
valid justification for delay for such a
long time in payment of 10% of G.P.F.
amount and that too without interest till
the date of payment.

6. The liability of interest and
manner of payment of funds are provided
under Rules 11 and 24 of General
Provident Fund Rules, 1985 (in short
'1985 Rules'). A Division Bench of this
Court
dealing
with
the
aforesaid
provisions in Kunwar Bahadur Saxena
Vs. State of U.P. & others 2007 (8) ADJ
553 has observed as under:

"From a perusal of Rules, 1985,
particularly Rule 24, it is evident that the
liability for payment of subscribers fund is
absolute under sub rule (1) on the
authority concerned maintaining the said
fund. It is provided that when the amount
standing to the credit of a subscriber in
the fund becomes payable, it shall be paid
as provided in Section 24 of the Provident
Funds Act, 1925. However, the manner of
payment
has
been
prescribed
in
subsequent provisions of Rule 24. For the
purpose of present case, it is not disputed
that sub rule (5) of Rule 24 would apply
since the petitioner was an employee,
other than Group -D employee. Sub rule 5
(a) of Rule 24 provides that the subscriber
shall submit two applications in Form
425-A set forth in Fourth Schedule to the
drawing
and
disbursing
officer,
in
triplicate, one for payment of 90% of
balance in the G.P.F. Pass book and the
other for the residual amount. It further
provides that ordinarily, the applications
shall be made six months prior to the date
of retirement in case of retirement on
superannuation and within one month
from the date on which the amount
became payable in other cases. Sub
clause 5 (b) of Rule 24 of Rules 1985
provides that the drawing and disbursing
officer
shall
thereupon
prepare
calculation sheets on the prescribed form,
the current as well as five preceding
financial years, in triplicate, and forward
within one month from the date of receipt
of the applications, two copies of the
calculation sheets with two copies of the
application and G.P.F. pass book to the
senior most officer dealing with accounts
attached to the Head of the Department,
who, after subjecting them to appropriate
checks forward the same within one
month to the sanctioning authority
mentioned in paragraph 2 of the second
schedule with his recommendation for
payment of 90% of the balance of G.P.F.
pass book. The Sanctioning authority
thereafter is required to pass an order of
payment of 90 % of the balance G.P.F. on
the application and communicate the
same to the drawing and disbursing
officer, the Treasury Officer concerned
and the Account officer, in the from set
forth in appendix "C" so as to enable to
the recipient to receive the payment.
Therefore the entire procedure under sub
rule (5) of Rule 24 of the Rules 1985 is
based on the amount mentioned in the
G.P.F. Pass book. The balance amount
shown therein would be the basis against
which 90% and 10% of the amount
3 All] Godenath Singh V. State of U.P. and others
809
respectively shall be mentioned by the
officer concerned in Form 425-A ."

7. Further, deprecating the attitude
of the authorities in harassing its retired
employees with respect to payment of
their retiral dues and in particular, the
provident fund, the Court in Kunwar
Bahadur
Saxena
(supra)
further
observed as under:

"Interest on the amount of provident
fund is not only compensatory but is a
statutory liability of the respondents to
pay the same for the reason that the
amount deducted from the petitioner's
salary remain with the respondents and
they may have utilized the same for their
own purpose hence entitling the petitioner
for payment of interest on the said
amount. Had the amount of provident
fund been paid in time to the petitioner,
he could have invested the same for better
utilization so as to live an honerable life
after retirement in the absence of any
other source of earning livelihood . The
attitude and conduct of the respondents
borne out from the record is nothing but
is
reprehensible
and
should
be
condemned in strongest words. It is no
doubt true that an employer for just and
valid reasons and in exercise of power
vested in it can defer or deny pension and
other retiral benefits to an employee
provided the action of the employer is in
accordance with the procedure prescribed
in law and such a power also emanates
from statute or the relevant provisions
having force of law. In our system, the
Constitution being supreme, yet the real
power vest in the people of India since the
Constitution has been enacted "for the
people, by the people and 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 ex-employee who has served for a
long time and has earned certain benefits
under
the
rules
recoverable
after
attaining the age of superannuation.
Pension and retiral benefits are not
bountee but right of an employee
crystallized in deferred wages to which he
is entitled under the rules after retirement
and non payment thereof is clearly
violative of Article 21 of the Constitution
of India. Therefore, it becomes more
important for the public functionaries and
the authorities to act with better sense of
responsibility so that their ex-employee
may not be subject to harassment at the
old age when they have already retired
and have to survive and maintain
themselves and their family with the
meager amount payable in the form of
retiral benefits. The respondents being a
State Government and function through
its
officers
appointed
in
various
department is suppose to discharge his
duty strictly in accordance with law as
observed
under
our
Constitution,
sovereignty vest in the people. Every limb
of the 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 the 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 the entire machinery and the
various powers of the statute and an
ordinary citizen or a common man is
hardly equipped to match such might of
810 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the
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 the 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 the occasion
otherwise the confidence of the common
man would shake. It is the responsibility
of
the
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
the arbitrary and arrogant unlawful
inaction or illegal exercise of power on
the part of the public functionaries.
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 in
action 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."

8. In view of what has been
observed in the aforesaid judgment, which
is squarely applicable to the facts and
circumstances of the present case also,
where the respondents have not been able
to show any justification whatsoever for
no payment of balance 10% G.P.F.
amount to the petitioner within the period
prescribed in the Rules and having caused
the delay of almost 13 years in payment
thereof, this Court is satisfied that the
petitioner deserves not only payment of
penal interest on balance 10% amount of
G.P.F. for the delay but also entitled for
exemplary cost.

9. The writ petition is, accordingly,
allowed. The respondents are directed to
pay interest at the rate of 12% per annum
on the balance 10% G.P.F. amount to the
petitioner for the period from February
1997 to 19.6.2998 on which date, the said
payment was made. The petitioner shall
also be entitled to cost, which is
quantified to Rs. 20,000/-. The payment
under this judgment shall be made to the
petitioner within four months from the
date of production of certified copy of this
order before the respondents.
3 All] Radhey Shyam Nishad V. State of U.P. and others
811
10. However, the respondents are at
liberty to recover the amount, which they
are required to pay to the petitioner under
this order, from the official concerned,
who is found to be responsible for such
negligence and delay, after making
appropriate enquiry in the matter in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 18399 of 2006

Radhey Shyam Nishad
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.P. Ram

Counsel for the Respondents:
Sri P.K. Pandey
Suman Sirohi
Sri Ghanshyam Dwivedi
Sri B.P. Singh
Sri I.C. Pandey
S.C.

Constitution
of
India
Art.
226Regularisation-petitioner
working
as
Motor Vote Driver for the last 37 yearsfour junior to petitioner-regularisedclaim of petitioner rejected on the
ground of no vacancy-specific contention
of 4 existing vacancy of operator- not
denied, nor the regularized of junior to
the petitioner denied-even on direction
of court instead of regularizing in pay
scale of 4000-6000/- regularized on in
the
pay
of
Rs.2610-3540/-
only
objection that petitioner is not qualifiedNo steps taken to dispensing the services
nor the authorities taken any steps for
creation of the post of M.V. Driver-heldentitled to be regularized w.e.f. one day
prior to the regularization of junior on
the
post
of
operator-grad-I-order
rejecting
representation
as
well
as
regularization
on
lower
pay
scale
quashed.

Held: Para 11

As I have held that for 37 long years the
petitioner has been functioning on a
non-existing post, and the Department
made no effort to dispense his services
or to create a post for his absorption.
Further,
admittedly,
juniors
to
the
petitioner have been regularised and the
petitioner
has
been
discriminated.
Consequently, the policy adopted by the
respondents is clearly arbitrary and
violative of Articles 14 and 16 of the
Constitution.
In
matters
of
public
employment, the respondents cannot
choose a policy of 'pick and choose' by
absorbing juniors to the detriment of the
petitioner. This Court further finds that
the order of regularisation has been
made on a post lower than what the
petitioner has claimed. Further, no effort
has been made to give the petitioner the
pay protection, which he is entitled to,
under law, since he was receiving a
higher pay-scale.
Case law discussed:
JT (2006) 4 SC 420, 2008 All C J 493

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Shri R.P. Ram, the learned
counsel for the petitioner and the learned
Standing Counsel appearing for the
respondents.

2. The petitioner has filed the
present writ petition for the quashing of
the orders dated 19.10.1996, 16.12.2005,
26.08.2006 and 29.08.2006, and further
has prayed for a writ of mandamus
commanding the respondents to regularise
the petitioner on the post of Operator Gr.
I. The facts leading to the filing of the