# Khem Chand v. Union of India AIR

- **Citation:** (2011) 1 ILRA 267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-23
- **Bench:** Devi Prasad Singh, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khem-chand-v-union-of-india-air-41864
- **Pages:** 10

## Headnote

268 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Constitution of India, Article 226-claim
of medical reimbursement-kept pending
for two years-on pertext original bill
vouchers misplaced-upon direction of
court it processed and payment given
but without disclosing the name of guilty
officer-no
explanation
given
except
order complied with-held-court can not
sit as an idle-direction to pay 10%
interest per annum on withheld amount
with exemplary cost of Rs. 50000/-with
liberty to recover from personal benefits
of erring officer.

Held: Para 40, 41 and 42

In
view
of
above
discussion
and
considering the fact that genuine, valid
and just claim of petitioner remained
unattended before the respondents for
almost two years and more, we find it a
fit case where respondents must be
saddled with responsibility of payment of
interest on the aforesaid amount and
also to pay exemplary cost to petitioner
for causing harassment to him to an
extent of compelling him to invoke
extraordinary jurisdiction of this Court
by filing writ petition traveling all along
in this old age from Delhi to Lucknow.

In the above facts and circumstances,
writ petition is disposed of directing the
respondents to pay interest on the
amount of medical reimbursement paid
to the petitioner pursuant to order dated
12.2.2009, at the rate of 10% p.a. from
the
date
of
recommendation
dated
21.2.2007 till actual payment.

Respondents shall also pay cost to
petitioner quantified to Rs. 50,000/-
(Rupees fifty thousand).
Case law discussed:
AIR 1979 SC 49; JT 2009 (13) SC 643; 2009
(2) SCC 592; JT 2007(3) SC 112; AIR 1979 SC
429; AIR 2006 SC 182; AIR 2006 SC 898;
(2007) 9 SCC 497; (2009) 6 SCALE 17; (2009)
7 SCALE 622; JT (2009) 12 SC 198; 1972 AC
1027; 1964 AC 1129; JT 1993 (6) SC 307;JT
2004 (5) SC 17; (1996) 6 SCC 530; (1996) 6
SCC 558; AIR 1996 SC 715.

## Text

1 All] Dr. S.P. Mittal V. State of U.P. Thru Prin. Secy.Education and others
267

15. The suspension order is based
upon the allegations, without making any
enquiry. A special enquiry team had
verified the arrivals and distribution and
had given opportunity to the petitioner to
explain the unequal distribution of the
kerosene oil in the district. It is only after
the special enquiry team reported the
irregularities that the petitioner has been
placed under suspension.

16. We are not impressed by the
argument, that under the proviso to Rule 4
of
the
UP
Government
Servants
(Punishment and Appeal) Rules, 1999, the
allegations, even if established, will not
attract major penalty. Prima facie the
allegations
of
misconduct
in
the
suspension order, do not suggest that on
their proof a major penalty cannot be
given to the petitioner.

17. The judicial review of suspension
order is permissible in the cases where any
statutory conditions or limitation in exercise
of the powers to suspend an employee, has
been violated, or where the suspension is by
way
of
substantive
penalty
without
following the principles of natural justice.
An order of suspension may also be
challenged on the ground of malafides.
Where
the
suspension
is
pending
departmental enquiry as in the present case,
it does not involve punishment. It only
means
temporary
deprivation
of
the
functions or the right to discharge his duties.
It was not necessary to make a detailed
enquiry, into the allegations of alleged
misconduct, or to obtain the explanation of
the employee before making such order. If
the charges do not appear to be groundless,
the discretion of the disciplinary authority to
place
the
government
servant
under
suspension does not admit a strict judicial
review. These principles, on which an order
of suspension can be subjected to challenge,
have been settled in Ghous Mohd vs. State
of Andhra Pradesh AIR 1957 SC 246;
Khem Chand vs. Union of India AIR
1963 SC 687; Pratap Singh vs. State of
Punjab AIR 1964 SC 72; State of
Haryana vs. Hari Ram Yadav AIR 1994
SC 1262; Union of India vs. Udai Narain
(1998) 5 SCC 535.

18. The petitioner has not made out
any good ground to challenge the
suspension order. The petitioner as
incharge District Supply Officer, was
responsible for equal and equitable
distribution
of
additional
quota
of
kerosene oil in the district and to maintain
the supplies for all the eligible citizen
holding ration cards for entitlement of
such
distribution.
Prima
facie
the
allegations are not of such nature on
which the powers of suspension could not
be invoked. No other point was pressed.

19. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.03.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE SUDHIR AGARWAL, J.

Service Bench No. - 251 of 2009

Dr. S.P. Mittal

 ...Petitioner
Versus
State Of U.P. Thru Prin. Secy. Education
and others

 ...Respondent

Counsel for the Petitioner:
Sri Sunil Sharma

Counsel for the Respondent:
C.S.C.
268 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Constitution of India, Article 226-claim
of medical reimbursement-kept pending
for two years-on pertext original bill
vouchers misplaced-upon direction of
court it processed and payment given
but without disclosing the name of guilty
officer-no
explanation
given
except
order complied with-held-court can not
sit as an idle-direction to pay 10%
interest per annum on withheld amount
with exemplary cost of Rs. 50000/-with
liberty to recover from personal benefits
of erring officer.

Held: Para 40, 41 and 42

In
view
of
above
discussion
and
considering the fact that genuine, valid
and just claim of petitioner remained
unattended before the respondents for
almost two years and more, we find it a
fit case where respondents must be
saddled with responsibility of payment of
interest on the aforesaid amount and
also to pay exemplary cost to petitioner
for causing harassment to him to an
extent of compelling him to invoke
extraordinary jurisdiction of this Court
by filing writ petition traveling all along
in this old age from Delhi to Lucknow.

In the above facts and circumstances,
writ petition is disposed of directing the
respondents to pay interest on the
amount of medical reimbursement paid
to the petitioner pursuant to order dated
12.2.2009, at the rate of 10% p.a. from
the
date
of
recommendation
dated
21.2.2007 till actual payment.

Respondents shall also pay cost to
petitioner quantified to Rs. 50,000/-
(Rupees fifty thousand).
Case law discussed:
AIR 1979 SC 49; JT 2009 (13) SC 643; 2009
(2) SCC 592; JT 2007(3) SC 112; AIR 1979 SC
429; AIR 2006 SC 182; AIR 2006 SC 898;
(2007) 9 SCC 497; (2009) 6 SCALE 17; (2009)
7 SCALE 622; JT (2009) 12 SC 198; 1972 AC
1027; 1964 AC 1129; JT 1993 (6) SC 307;JT
2004 (5) SC 17; (1996) 6 SCC 530; (1996) 6
SCC 558; AIR 1996 SC 715.
(Delivered by Hon'ble D.P. Singh, J.)

1. Heard Sri Sunil Sharma, learned
counsel
for
petitioner
and
learned
Standing Counsel for respondents.

2. Petitioner has sought writ of
mandamus commanding the respondents
to pay medical reimbursement of Rs.
17,146/- and 6,570/- along with interest
without insisting on the original medical
vouchers and further to conduct a high
level enquiry to find out the person
responsible for loss of original bill
vouchers.

3. The facts, in brief, giving rise to
the present dispute are as under.

4. Petitioner, Dr. S.P. Mittal, retired
from the post of Director of Education,
U.P. on 31.7.1990 having attained the age
of superannuation. After retirement, he
settled at Delhi and having exercised his
option, which has been accepted by the
respondents, he is drawing pension at
Delhi through Pay and Accounts Office,
U.P. Bhawan, New Delhi. Presently,
petitioner is above 78 years of age. He
and his wife are chronic patients of
Diabetes and Asthma, hence, undergoing
regular medical treatment at Delhi. The
medical
reimbursement
claim
of
petitioner and his wife used to be
examined and countersigned by Addl.
Director, Medical Health, Meerut Region,
Meereut whereafter the payments are
made by Senior Pay and Accounts
Officer, U.P. Shasan at Delhi (wherefrom
he is receiving his pension).

5. For reimbursement of medical
bills
for
the
period
1.7.2006
to
31.12.2006, requisite documents/original
vouchers were submitted by petitioner to
1 All] Dr. S.P. Mittal V. State of U.P. Thru Prin. Secy.Education and others
269
the competent countersigning authority
who after technical examination thereof,
forwarded the same to the Government
vide letter dated 21.2.2007 recommending
for payment of Rs. 17,146/- for the
petitioner's medical bills and Rs. 6,570/-
for petitioner's wife's bills. The Deputy
Secretary, U.P. Government sent letter
dated 6.9.2007 addressed to the Addl.
Director, Meerut Region, Meerut stating
that
medical
reimbursement
claim
recommendation in regard to Dr. S.P.
Mittal and his wife Smt. Savita Mittal are
being returned since the same have been
furnished without recommendation of
Regional
Medical
Board/Provincial
Medical Board. Petitioner, thereafter, had
to appear before State Medical Board on
25.10.2007.
The
Provincial
Medical
Board consisted of the Director General,
Medical
and
Health
Service,
U.P.
Lucknow as Chair Person, Chief Medical
Officer, Lucknow as Secretary of the said
Medical Board and Head of Department,
Opthalmology,
Medical
College,
Lucknow as Member. The Board verified
medical claim of petitioner and his wife
for
payment
vide
certificate
dated
25.10.2007/22.11.2007, copy whereof has
been placed on record as Annexure 2 to
writ petition.

6. The matter remained pending
with Government.

7. Again on 17.3.2008, the Special
Secretary, U.P. Government, sent a letter
to the Director of Education stating that in
view of the Government Order dated
11.2.2008, as per the new procedure,
medical
bills
relating
to
treatment
obtained outside State of U.P. has to be
sanctioned by the competent sanctioning
authority and, therefore, a decision at the
level of Director of Education was
required to be taken. The aforesaid letter
of the Government was transmitted to
Directorate of Education, U.P. Allahabad
from the Camp Office of Deputy Director
of Education, Lucknow with request to
take appropriate decision on the medical
reimbursement claim of petitioner and his
wife expeditiously.

8. The Director of Education sent a
letter dated 6.8.2008 to the Deputy
Secretary, U.P. Government (Education),
Lucknow that alongwith Government
Order dated 17.3.2008, original bill
vouchers of medical claim as also the
photocopy of Government Order dated
11.2.2008
were
not
received
and,
therefore,
the
said
documents
be
forwarded at the earliest for further
action.

9. In the meantime, since the matter
was pending for more than one and half
years, petitioner sent a representation
dated 9.9.2008 to Chief Secretary, U.P.
Government,
brining
to
his
notice
petitioner's frustration and predicament as
also harassment due to non clearance of
medical claim. The quantum of medical
claim might have been a petty amount for
the authorities but of substance for the
retired official and his family.

10. Thereafter U.P. Government
(Education Section) issued a letter on
29.9.2008 requiring the Directorate of
Education (Secondary) to make search of
requisite documents, i.e., original bill
vouchers and Government Order and,
then to take action as desired and take
appropriate steps expeditiously. It also
says that for loss of documents and delay,
responsibility be fixed on the person
concerned and department be informed
accordingly.
270 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

11. In turn, the Director of
Education vide letter dated 15.10.2008
reiterated
that
documents
are
not
available. It also mentioned that Dr.
Mittal has sought information under Right
to Information Act, hence, the documents
namely original bill vouchers and copy of
Government Order dated 11.2.2008 be
furnished to Director of Education earliest
for appropriate steps.

12. It is at this stage, the petitioner
has approached this Court by means of
this writ petition.

13. While entertaining this matter,
on 12.2.2009 this Court passed the
following order:

"Learned Chief Standing Counsel
who has accepted notice on behalf of
opposite parties prays for and is allowed
two weeks' time to file counter affidavit,
one week then for the rejoinder affidavit.
List
immediately
thereafter
on
18.03.2009.

The petitioner who retired from the
post of Director of Education on
31.7.1990
has
applied
for
medical
reimbursement of Rs. 23,716/- in lieu of
medical treatment, imparted to him and
his wife. The State Government has
recommended on 17.3.2008 for the dues
in question as medical reimbursement but
even then, the matter is hanging with the
Deputy Director of Services. In spite of
lapse of almost nine months, the medical
dues have not been reimbursed to the
petitioner, though the State Government
has already forwarded necessary papers
with
due
recommendations
to
the
competent authority. It is unfortunate on
the part of the opposite parties.

Accordingly,
the
Director
of
Education is directed to look into the
matter and ensure that the entire dues are
paid by 18.3.2009. He shall also hold an
enquiry as to why the entire dues have not
been paid to the petitioner in spite of the
recommendations
of
the
State
Government and shall take appropriate
action against the officers who are at
fault in not reimbursing the medical dues
and submit a compliance report to this
Court by the next date of listing. In case
the dues are not paid, the opposite party
No. 2 shall appear in person on the next
date of listing. This Court may consider to
impose cost as well as payment of interest
on the authorities who are at fault in not
reimbursing the medical dues."

14. Having no option, respondents
immediately took steps for payment of
above said medical claim and a treasury
cheque
bearing
no.
006392
dated
27.2.2009 of Rs. 23,716/- was issued to
petitioner satisfying his medical claim for
the period 1.7.2006 to 31.12.2006.

15. This is how the petitioner could
get the medical reimbursement after more
than two years and that too only when he
filed the present writ petition wherein this
Court, taking strict view of the matter,
passed order on 12.2.2009 as said above.

16. So far as direction given by this
Court
with
respect
to
enquiry
is
concerned, a copy of alleged enquiry
report submitted by Sri Krishna Mohan
Tripathi,
Director
of
Education
(Secondary), U.P. dated 3.3.2009 has
been placed on record as Annexure 5 to
the writ petition, which simply states that
delay occurred due to loss of original bill
vouchers for which department continued
in correspondence, hence, there was no
1 All] Dr. S.P. Mittal V. State of U.P. Thru Prin. Secy.Education and others
271
deliberate delay. Evidently, respondent
no. 2 did not find any one responsible for
delay in reimbursement of medical claim
i.e. after more than two years and felt
satisfied that it was such an ordinary thing
that no person be identified as responsible
for delay. It is not his case that the amount
has been paid to the petitioner after
searching
out
original
medical
bill
vouchers but he says that payment has
been made pursuant to this Court's order
dated 12.2.2009.

17. Learned Standing Counsel
submits that since the payment has now
already been made, therefore, this writ
petition be dismissed having rendered
infructuous.

18. Sometimes, when a claim is
satisfied, this Court pass order consigning
the record of writ petition having rendered
infructuous, but we are of the view that
the present one is not a case of such a
nature where mere on this account, the
matter deserves to be dropped. An aged
retired employee and his wife have been
made to suffer financially and otherwise
in respect to a claim for which they had
already incurred expenses. Their right of
reimbursement is not in doubt, yet in the
bureaucratic jargon the respondents kept
the matter unattended for years together
keeping the petitioner to run from one to
other office, but nothing impressed upon
the respondents to end his misery. So
much so that the petitioner was compelled
to file this writ petition traveling
althrough from Delhi to Lucknow and
only thereafter, the payment has been
made. Is it what expected from a model
employer or from a welfare State?

19. Moreover, the conduct of the
respondent
is
also
disturbing.
The
respondents are bold enough not to hold
anybody responsible for the alleged loss
of documents which they have made sheet
anchor of their defence to extra ordinary
delay in reimbursement of medical claim
of petitioner. None has been identified for
this negligence and none has been
proceeded against. The Director of
Education (Secondary) has taken entire
things so lightly that even Court's order
directing for enquiry has been tried to
render futile by submitting that delay
occurred due to loss of original bill
vouchers and there is no deliberate delay.
Why long drawn correspondence and that
too with interval of months together
continued though the payment could have
been made to the petitioner even without
original vouchers as has actually been
done
ultimately.
Has
neither
been
explained in the alleged enquiry report
dated 3.3.2009 nor by the learned
Standing Counsel since nothing has been
said in the counter affidavit on this aspect.
We have no hesitation in observing that
enquiry report dated 3.3.2009 is wholly
vague, sketchy and shows total apathy
and a careless attitude of respondents in
such matters.

20. The manner in which petitioner
has been dealt with shows the highest
degree of apathy on the part of
respondents. We express our strongest
condemnation and displeasure for such
attitude and conduct on the part of
respondent and in particular respondent
no. 2. We enquired from learned Standing
Counsel if payment could have been made
without having original vouchers on
18.3.2009, why the same could not be
done earlier to which he could not
forward any explanation. The only thing
evident from counter affidavit is that
Court's order had to be complied with and
272 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
that
is
why
payment
was
made
immediately and this time respondents did
not find the alleged loss of vouchers a
reason for non reimbursement.

21. Here is not a case where
anything was lacking on the part of
petitioner. If the documents were lost, it
was from the possession of respondents.
Without holding any person responsible
for such recklessness, where important
documents form Government officials
custody have lost, the respondents could
not have left the matter in lurch in such a
way. But they have done so.

22. We have no manner of doubt to
infer from all these facts that entire lapses
are being ignored collusively in which
respondents 1 and 2 are also party.

23. Admittedly, there is no dispute
about the genuineness of claim of
petitioner
or
his
entitlement
for
reimbursement or that he did not submit
all requisite documents and completed the
formality at his end. In the circumstances,
non reimbursement of medical claim for
such a long time is ex facie illegal,
arbitrary and travels in the realm of
malice in law.

24. The Apex Court has summarised
"malice
in
law
"
in
(Smt.)
S.R.Venkatraman Vs. Union of India
and another, AIR 1979, SC 49 as under :

"It is equally true that there will be
an error of fact when a public body is
prompted by a mistaken belief in the
existence of a non-existing fact or
circumstance.
This
is
so
clearly
unreasonable that what is done under
such a mistaken belief might almost be
said to have been done in bad faith; and
in actual experience, and as things go,
these may well be said to run into one
another." (Para 8)

25. The Apex Court further in para 9
of the judgment in S.R. Venkatraman
(supra) observed:

" 9. The influence of extraneous
matters will be undoubted where the
authority making the order has admitted
their influence. It will therefore be a gross
abuse of legal power to punish a person
or destroy her service career in a manner
not warranted by law by putting a rule
which makes a useful provision for the
premature retirement of Government
servants only in the ''public interest', to a
purpose wholly unwarranted by it, and to
arrive at quite a contradictory result. An
administrative order which is based on
reasons of fact which do not exist must,
therefore, be held to be infected with an
abuse of power."

26. In Mukesh Kumar Agrawal
Vs. State of U.P. and others JT 2009
(13) SC 643 the Apex Court said :

" We also intend to emphasize that
the distinction between a malice of fact
and malice in law must be borne out from
records; whereas in a case involving
malice in law which if established may
lead to an inference that the statutory
authorities had acted without jurisdiction
while exercising its jurisdiction, malice of
fact must be pleaded and proved."

27. In Somesh Tiwari Vs. Union of
India and others 2009 (2) SCC 592
dealing with the question of validity of an
order of transfer on the ground of malice
in law , the Apex Court in para 16 of the
judgment observed as under:
1 All] Dr. S.P. Mittal V. State of U.P. Thru Prin. Secy.Education and others
273

"16. .... Mala fide is of two kinds--
one malice in fact and the second malice
in law. The order in question would
attract the principle of malice in law as it
was not based on any factor germane for
passing an order of transfer and based on
an irrelevant ground i.e on the allegations
made against the appellant in the
anonymous complaint. It is one thing to
say that the employer is entitled to pass
an order of transfer in administrative
exigencies but it is another thing to say
that the order of transfer is passed by way
of or in lieu of punishment. When an
order of transfer is passed in lieu of
punishment, the same is liable to be set
aside being wholly illegal."

28. In HMT Ltd. and another Vs.
Mudappa and others JT 2007(3) SC
112 the Apex Court in paras 18 and 19
defined malice in law by referring to
"Words and Phrases Legally Defined, 3rd
Edn., London Butterworths, 1989" as
under:

"The legal meaning of malice is "illwill or spite towards a party and any
indirect or improper motive in taking an
action". This is sometimes described as
"malice in fact". "Legal malice" or
"malice in law" means ''something done
without lawful excuse'. In other words, ''it
is an act done wrongfully and wilfully
without reasonable or probable cause,
and not necessarily an act done from ill
feeling and spite'. It is a deliberate act in
disregard of the rights of others."

"19. It was observed that where
malice was attributed to the State, it could
not be a case of malice in fact, or
personal ill-will or spite on the part of the
State. It could only be malice in law, i.e
legal mala fide. The State, if it wishes to
acquire land, could exercise its power
bona fide for statutory purpose and for
none other. It was observed that it was
only because of the decree passed in
favour of the owner that the proceedings
for acquisition were necessary and hence,
notification was issued. Such an action
could not be held mala fide."

29. In brief malice in law can be said
when a power is exercised for an
unauthorized purpose or on a fact which
is claimed to exist but in fact, is non-est or
for the purpose for which it is not meant
though apparently it is shown that the
same is being exercised for the purpose
the power is supposed to be exercised.
[See Manager Govt. Branch Press and
another Vs. D.B.Belliappa AIR 1979 SC
429; Punjab Electricity Board Vs. Zora
Singh and others AIR 2006 SC 182;
K.K.Bhalla Vs. State of U.P. and others
AIR 2006 SC 898; P. Mohanan Pillai
Vs. State of Kerala and others (2007) 9
SCC 497; M.P.State Corporation Diary
Federation
Ltd.
and
another
Vs.
Rajneesh Kumar Zamindar and others
(2009) 6 SCALE 17; Swarn Singh
Chand Vs. Punjab State Electricity
Board and others (2009) 7 SCALE 622
and Sri Yemeni Raja Ram Chandar Vs.
State of Andhra Pradesh and others JT
(2009) 12 SC 198]. The inaction and
laxity in this case, in our view, is
malicious, if not in fact then in law.

30. Having said so, we are also of
the view that withholding of lawful dues
of Government employees for years
together is not only illegal and arbitrary
but a sin, if not an offence, since no law
has declared so. The officials, who are
instrumental in such delay causing
harassment to the employees concerned,
must feel afraid of committing such a sin.
274 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Unfortunately, they do not . The skin of
the authorities has got so thick that the
misery of even old people does not touch
them.

31. In our system, the Constitution is
supreme. The real power, however, vest
in the people of India. 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
employee and that too a retired, old and
sick person.

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

33. Regarding harassment of a
common man, referring to observations of
Lord Hailsham in Cassell & Co. Ltd. Vs.
Broome, 1972 AC 1027 and Lord Devlin
in Rooks Vs. Barnard and others 1964
AC 1129, the Apex Court in Lucknow
1 All] Dr. S.P. Mittal V. State of U.P. Thru Prin. Secy.Education and others
275
Development
Authority
Vs.
M.K.
Gupta JT 1993 (6) SC 307 held as under:

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

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

35.

The
respondent-authorities
appears to have taken an attitude that in
whatever and whichever manner they
work, nothing can happen to them. They
are immune from all kind of censures,
commands and adverse action. In effect,
the
attitude
is
of
total
lack
of
accountability. We feel that in the welfare
State, one cannot be absolved from the
principle of institutional accountability
where its action or omission has caused
an avoidable harassment to a person and
in particular a citizen of this Country and
more particular a retired and aged
employee of the State. Nobody can dare
to say that I can keep a claim unattended
as along as I like and nobody can call
upon me to function in a time bound
manner or fix my responsibility. The
power vested in authorities is for the
benefit of individual(s) or a group, and the
public at large and has to be exercised in a
reasonable manner, else, it may result in
travesty of justice which this Court cannot
permit.

36. 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.

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

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

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

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

39.

In
Delhi
Development
Authority Vs. Skipper Construction
276 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
and Another AIR 1996 SC 715 has held
as follows:

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

40. In view of above discussion and
considering the fact that genuine, valid
and just claim of petitioner remained
unattended before the respondents for
almost two years and more, we find it a fit
case where respondents must be saddled
with responsibility of payment of interest
on the aforesaid amount and also to pay
exemplary cost to petitioner for causing
harassment to him to an extent of
compelling him to invoke extraordinary
jurisdiction of this Court by filing writ
petition traveling all along in this old age
from Delhi to Lucknow.

41. In the above facts and
circumstances, writ petition is disposed of
directing the respondents to pay interest
on the amount of medical reimbursement
paid to the petitioner pursuant to order
dated 12.2.2009, at the rate of 10% p.a.
from the date of recommendation dated
21.2.2007 till actual payment.

42. Respondents shall also pay cost
to petitioner quantified to Rs. 50,000/-
(Rupees fifty thousand).

43. The aforesaid amounts shall be
determined and paid to petitioner within
two months from the date of production
of a certified copy of this order.

44. The aforesaid amount, at the first
instance, shall be paid by respondent no.
1. However, respondent No.1 shall be at
liberty to recover above amount of
interest and cost paid to petitioner under
this order from the official(s) concerned,
who is/are found responsible for extra
ordinary delay in payment of medical
reimbursement to the petitioner, after such
inquiry as is required in law.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.03.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
HON'BLE SUDHIR AGARWAL, J.

First appeal from order no. - 699 of 2003

Smt. Premwati and another ...Petitioner
Versus
Shiv Shanker and 2 others ...Respondent

Counsel for the Petitioner:
Sri A.K. Katiyar

Motor Vehicle Act, 1988-Section-166decreased 21 years old girl-no denial of
accident-tribunal
award
Rs.
1
Lac
towards
Compensation-under
second
schedule-noticed monthly income fixed
Rs. 3000/- per month-after deduction of
1/3
her
annual
income
would
be
24,000/-if 17 multiplier given-amount
should
come
Rs.
408000/-person
includes
boy
or
girl-without
any
discrimination appeal for enhancement
allowed accordingly.

Held: Para 10

In view of above, we are of the view that
even notional income should not be less
than Rs. 3000/- per month. Accordingly,