# Raisul Hassan v. State of U.P. and another

- **Citation:** (2009) 1 ILRA 224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-26
- **Case number:** Civil Misc. Writ Petition No.55481 of 2006
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raisul-hassan-v-state-of-u-p-and-another-41350
- **Pages:** 6

## Headnote

Constitution
of
India-Article
226Pension-petitioner retired from the post
of Store Keeper working in Nagar Nigam,
Moradabad-more than four years elapsed
even representation not decided-heldattitude of employer towards sick, poor
infirm
employee
should
be
alike
guardian-against
the
Constitution
mandate-direction for payment of all
dues within three months issued.

Held: Para 15

There is neither any inquiry pending
against the petitioner nor any other
disciplinary
proceedings
were
ever
initiated
against
him.
There
is
no
allegation of any embezzlement nor any
recovery for any loss caused to the
department. Charge has been handed
over to one Dashrath Lal on 28.2.2005
itself. Charge certificate is duly countersigned by Varishtha Nagar Swasthya
Adhikari, Moradabad. No dues certificate
have also been submitted, yet not a
1 All] Raisul Hassan V. State of U.P. and another

225
single
penny
has
been
paid.
The
petitioner retired in February, 2005 and
now we are in January, 2009. Four years
have passed while the poor petitioner is
running from pillar to post. This situation
can not be allowed to be perpetuated by
the Court keeping in view the spirit of
the
constitutional
provisions
and
judgements of the Hon'ble Supreme
Court in a socialistic country like India.
Case law discussed:
(1983) 1 SCC 305

## Text

224 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

make arrangement to interview the
petitioner and make available the
records of the interview already held
before
the
Board
for
its
due
consideration.
This writ petition stands allowed
as above. No order is passed as to
costs".

8. The aforesaid order has become
inasmuch as it has not been shown that it
has been challenged. This Court has
already held that typing qualification was
only preferential qualification and not
essential qualification was only relevant
when the two candidates get the equal
marks. Therefore, it is not open to the
respondents to take the plea again that the
typing qualification was the essential
qualification. In the counter affidavit,
paragraphs 12 and 13 of the writ petition
has not been disputed.

9. Perusal of the paragraphs 12 and
13 of the writ petition shows that the
petitioner has got 39 marks while other
selected candidates, namely, Sanjeev
Kumar, Umashankar Rakwar, Rajendra
Sharan Rakwar, Shishupal, Vishnu Kumar
and Santosh Kumar obtained only 37.265,
36.40, 32.265, 32.355, 31.70 and 30.10
marks lower than the petitioner's marks
and, therefore, the denial of the selection
of the petitioner by the respondents is
wholly unjustified.

10. In the result, writ petition is
allowed. The impugned order dated
26.08.2006 is set aside and the respondent
no. 1 is directed to give the appointment
to the petitioner on the post of Junior
Clerk in pursuance of the advertisement
dated 10.08.1998 forthwith preferably
within a period of two weeks. However,
having
regard
to
the
facts
and
circumstances, the appointment shall be
given with prospective effect and the
petitioner may not be entitled to claim any
back wages.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2009

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Civil Misc. Writ Petition No.55481 of 2006

Raisul Hassan

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

Counsel for the Petitioner:
Sri. Raj Kumar Khanna

Counsel for the Respondents:
Sri. Prem Chandra
S.C.

Constitution
of
India-Article
226Pension-petitioner retired from the post
of Store Keeper working in Nagar Nigam,
Moradabad-more than four years elapsed
even representation not decided-heldattitude of employer towards sick, poor
infirm
employee
should
be
alike
guardian-against
the
Constitution
mandate-direction for payment of all
dues within three months issued.

Held: Para 15

There is neither any inquiry pending
against the petitioner nor any other
disciplinary
proceedings
were
ever
initiated
against
him.
There
is
no
allegation of any embezzlement nor any
recovery for any loss caused to the
department. Charge has been handed
over to one Dashrath Lal on 28.2.2005
itself. Charge certificate is duly countersigned by Varishtha Nagar Swasthya
Adhikari, Moradabad. No dues certificate
have also been submitted, yet not a
1 All] Raisul Hassan V. State of U.P. and another

225
single
penny
has
been
paid.
The
petitioner retired in February, 2005 and
now we are in January, 2009. Four years
have passed while the poor petitioner is
running from pillar to post. This situation
can not be allowed to be perpetuated by
the Court keeping in view the spirit of
the
constitutional
provisions
and
judgements of the Hon'ble Supreme
Court in a socialistic country like India.
Case law discussed:
(1983) 1 SCC 305

(Delivered by Hon'ble Shabihul Hasnain, J.)

1. Heard Sri Raj Kumar Khanna,
learned counsel for the petitioner and Sri
Prem Chandra, learned counsel for the
opposite party No.2.

2. The case of the petitioner is that
he was working as Store Keeper in the
Health Department of Nagar Nigam,
Moradabad from where he retired on
28.2.2005 after attaining the age of
superannuation. Since that date he has not
even been paid the provisional pension
and he has been suffering economically
and socially as well. The petitioner has
made several representations which did
not bring any fruitful result and finally
this writ petition has been filed before this
Court.

3. It is the case of the petitioner that
on his retirement on 28.2.2005, he handed
over the charge to one Sri Dashrath Lal
Ojha.
The
charge
certificate
was
countersigned by the Varishtha Nagar
Swasthya
Adhikari,
Nagar
Nigam,
Moradabad. This document has been.
annexed as Annexure No.1 to the writ
petition. A no dues certificate duly signed
by the Varishtha Nagar Swastya Adhikari,
Nagar Nigam, Moradabad has been
annexed as Annexure No.2 to the writ
petition. A perusal of the said document
shows that various other officers/in
charges of different sections like library
department, go-down and store keeper
(Health) have also counter signed the
same, giving a complete no dues
certificate in favour of the petitioner. The
petitioner
further
submits
that
he
approached the Nagar Ayukta many times
for payment of his pension but nothing
was done. He has annexed two such
representations which have been annexed
as Annexures 3 and 4 to the writ petition.

4. Sri Prem Chandra, learned
counsel for the opposite party No.2, the
Nagar Nigam informed that the counter
affidavit has already been filed to the writ
petition and a rejoinder to the same has
also been filed. The counter and rejoinder
affidavits are on record.

5. Learned counsel for the opposite
party Sri Prem Chandra has fairly
admitted that no pension has been paid to
the petitioner but he hastened to add that
there are reasons for the same which have
been enumerated in the counter affidavit.

6. In para 6 of the counter affidavit
the opposite parties have clearly admitted
that a proper handing over of the charge
was done through a charge certificate duly
counter signed by the Varishtha Nagar
Swasthya
Adhikari,
Moradabad
on
28.2.2005.

7. In para 7 of the counter affidavit
the objection has been raised that the 'No
Dues
Certificate'
submitted
by
the
petitioner (Annexure No.2) is not proper.
Although it has been issued by the
Varishtha Nagar Swasthya Adhikari and
duly countersigned by other Sections
Officers but the dates on which these
signatures have been made are not
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

28.2.2005 but a few days prior to this.
This according to the counter affidavit is
improper hence bad for the purposes of
the no dues. The no dues according to the
counter affidavit could only be given
either on or later than 28.2.2005.

8. Learned counsel for the petitioner
submits that this is a normal affair. The
process of preparing the pension papers of
any employee starts at least six months
prior to his retirement. The various Govt.
orders have been issued in this regard and
various
judgements
of
the
Hon'ble
Supreme Court have held that delay
should not be caused in preparation of
pension
papers
of
an
employees.
Moreover, it is not the case of the
opposite parties that any particular item is
still in the possession of the petitioner.
Neither any inquiry has been done in this
regard nor any explanation has been
sought from the Varistha Nagar Swasthya
Adhikari, Nagar Nigam, Moradabad or
other officials who have given the said no
dues. No other format is prescribed on
which the no dues is supposed to be
given. The argument of the petitioner
appears to carry some weight. Further the
no dues have all been given in the month
of February, 2005 hence it can not be said
that it was very very early to give a no
dues. It is, therefore, clearly established
that on 28.2.2005 there was not only a
charge certificate but also the necessary
no dues certificate duly counter signed by
the Varishta Nagar Swasthya Adhikari,
Moradabad. No case has been set out in
the counter affidavit that any action has
been taken against any of the officers
issuing the no dues nor any explanation
has been sought from the Varishtha Nagar
Swasthya Adhikari.

9. In para eight of the counter
affidavit further reasons have been shown
for not releasing the pension. First ground
given is that during 2003-04 certain audit
objections were raised which have not
been removed by the petitioner. Annexure
in the counter affidavit has been annexed
stating that on pages 53, 54, 55, 27, 28,
109, 137, 138 and 145 of the audit report,
the audit objections have been shown.
Strangely enough on perusal of the
Annexure CA-1 it transpires that the
objections relate to one Sri Raju, Store-
Keeper and not the petitioner. This
statement by the opposite parties in para 8
of the counter affidavit on oath goes to
establish that the opposite parties have
tried to mislead the Court by placing
reliance on irrelevant document. Hence,
this objection deserves to be overlooked.
Moreover, if there was any audit
objection relatable to 2003-04 then the
opposite parties should have initiated
some inquiry or disciplinary action
against the petitioner. There is no case to
this effect in the counter affidavit.

10. Second ground given in the para
eight is that the petitioner had not handed
over certain files regarding purchase of
Fogging Machine, JBC Machine of Safai
Godown Gulabbari. The learned counsel
for the petitioner submits that the
petitioner handed over all the files and
documents available within him. The no
dues certificate issued by the relevant
officers is on record and the person who
has taken over charge has not written that
he has not been given complete handing
over charge. The petitioner is in no
position to meet out the allegations of the
opposite parties who are acting arbitrarily.
Moreover, there is no case of any
embezzlement or causing any financial
loss to the department. There is no case of
1 All] Raisul Hassan V. State of U.P. and another

227
any misconduct also. Hence this cannot
be a good ground for withholding the
pension of the petitioner.

11. Third ground taken by the
petitioner has some force. It has been
stated that the petitioner had not deposited
the contribution on behalf of the employer
i.e. Nagar Nigam in the Provident Fund
Account with interest. This has to be done
by the petitioner under Regulation 3 of
the
Moradabad
Nagar
Nigam
Non
Centralised Service Retirement Benefit
Regulation, 1998. The counter affidavit
does not show that any notice/information
was given to the petitioner to complete
this
formality.
There
is
no
letter/communication on record to show
that any effort has been made by the
employer to get the formalities completed
for
payment
of
pension.
The
representation of the petitioner has been
pending with the opposite parties without
any action or decision. The fact remains
that no financial payment is being made
to the petitioner for one reason or the
other. The petitioner has stated on
affidavit that he is a heart patient and is
being treated at Vivekanand Hospital
Moradabad. The life of the petitioner is
dependant on financial viability of the
treatment required by him.

12. I have given my anxious
consideration to the rival contentions, the
claim of the petitioner, his penury
position, his old age and failing health and
the reasons shown in the counter affidavit
by the opposite parties and their attitude, I
am reminded of the words used by their
Lordships in the case of D. S. Nakara
and others Vs. Union of India (1983) 1
SCC 305 In para 20 their Lordships
observed as under:-

"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 Vs. State of Bihar wherein this
Court 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 Vs. Iqbal Singh. "

Again summing up the discussion in para
29 their Lordships declared as under:-

"Summing up it can be said with
confidence that pension is not only
compensation for loyal service rendered
in the past, but pension also has a
broader significance, in that it is a
measure of socio-economic justice which
inheres economic security in the fall of
life when physical and mental prowess is
ebbing corresponding to ageing process
and, therefore, one is required to fall back
on savings. One such saving in kind is
when you give your best in the hey-day of
life to your employer, in days of
invalidity, economic security by way of
periodical payment is assured. The term
228 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

has been judicially defined as a stated
allowance
or
stipend
made
in
consideration of past service or a
surrender of rights or emoluments to one
retired from service. Thus the pension
payable to a government employee is
earned by rendering long and efficient
service and therefore can be said to be a
deferred portion of the compensation or
for service rendered. In one sentence one
can say that the most practical raison
deter for pension is the inability to
provide for oneself due to old age. One
may live and avoid unemployment but not
senility and penury if there is nothing to
fall back upon."

13. In view of what has been
discussed above, I have come to the
conclusion that the approach and attitude
of the opposite parties towards the
petitioner who has been their employee
for his life time can not be appreciated.
The purpose of law in a welfare state can
not but be to help the people achieve or
get what is due to them and not to use the
law to thwart what is coming to a person
legally. Moreover, the attitude of he
employer towards the old, infirm and sick
employee should be that of a guardian,
protector and provider and not that of
indifferent and casual labour who works
in shifts and goes back home after
completing eight hours of work without a
thought about the factory in which he
works.
Employer
has
greater
responsibility than the employee and
specially
when
the
employer
is
Government in a democratic society and a
country like our India, the responsibility
increases manifold. India has had great
culture of respecting the retired and old.
This is the reason after sixty years we call
a person "senior citizen".

14. In the present case the opposite
parties have not even decided the
representations
submitted
by
the
petitioner. No effort has been made to get
the
formalities
completed
by
the
petitioner. In fact the exercise to get the
formalities completed by the petitioner
and the department should have started
six months ago i.e. before the date of
retirement of the petitioner.

15. There is neither any inquiry
pending against the petitioner nor any
other disciplinary proceedings were ever
initiated against him. There is no
allegation of any embezzlement nor any
recovery for any loss caused to the
department. Charge has been handed over
to one Dashrath Lal on 28.2.2005 itself.
Charge certificate is duly counter-signed
by Varishtha Nagar Swasthya Adhikari,
Moradabad. No dues certificate have also
been submitted, yet not a single penny has
been paid. The petitioner retired in
February, 2005 and now we are in
January, 2009. Four years have passed
while the poor petitioner is running from
pillar to post. This situation can not be
allowed to be perpetuated by the Court
keeping in view the spirit of the
constitutional provisions and judgements
of the Hon'ble Supreme Court in a
socialistic country like India.

16. The petition is, thus, allowed.
The opposite party No.2 is directed to
enquire into the matter and get the
formalities, if any, completed positively
within one month from the date a certified
copy of this order is placed before him
and make the payment of pension and
other post retiral dues payable to the
petitioner under the relevant laws for the
purpose. This should be done within one
month thereafter.
1 All] Merind Ltd. and another V. P.A. (under Payment of Wages) Act, and another

229

17. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.55894 of 2005

Merind Limited and another ...Petitioners
Versus
Prescribed Authority (Under Payment
of Wages Act) Bijnor and Assistant
Labour
Commissioner,
Bijnor
and
another

 ...Respondents

Counsel for the Petitioners:
Sri Yashwant Verma

Counsel for the Respondents:
Sri Arun Kumar Singh
S.C.

Workman
Compensation
Act
1936Section 1 (4)-readwith Sales Promotion
Employees Condition of Service Act,
1976-Workman-working
as
Sales
promotion drawing more than Rs.1600/-
salary-excluded for the provisions of Actorder
passed
by
Assistant
Labour
Commissioner without jurisdiction-also
on
the
ground
respondent/workman
transferred from Bijnor to Assam-which
remained
un
challenged-respondent
employee remanded absent for long
period-No question of salary.

Held: Para 35

In view of the aforesaid categorical
statement of law enunciated by Hon'ble
Apex Court, there can be no scope for
doubt to hold that the respondent no.2
who was admittedly drawing Salary
Rs.13,825/- per month is excluded from
the operation of provisions of the 1936
Act by virtue of the provisions of Section
1(6) of the said Act, irrespective of fact
whether he is workman or not by virtue
of Section 6(2) of the 1976 Act, which
continues
to
apply
to
him
and
irrespective of fact as to whether he is
excluded from Industrial Dispute Act by
Section 6(7)(b) of 1976 Act or not,
therefore, he is not entitled to invoke the
provisions of Section 15 (2) and Section
15(3) of the 1936 Act. As such the claims
set up by him under Section 15 (2) and
Section 15 (3) of the 1936 Act in my
considered opinion is not maintainable
before the prescribed authority under
the Act 1936. Therefore, the Assistant
Labour Commissioner, Bijnor has no
jurisdiction to entertain and proceed
with PWA Case No.18 of 2005 Ajit Singh
Vs. Merind Limited and another pending
before him. The entire proceeding is
without jurisdiction and is liable to be
quashed. Accordingly, the same is hereby
quashed. In the result, the writ petition
succeeds and is allowed.
Case law discussed:
(2007) 11 S.C.C. 25, AIR 1984 SC, 1022, AIR
1987 SC 579, (2007) 11 SCC, 25

(Delivered by Hon'ble Sabhajeet Yadav, J.)

Heard Sri Yashwant Verma, learned
counsel for the petitioners and Sri Arun
Kumar Singh for respondent no.2.

By this petition, the petitioners have
sought relief of writ of certiorari for
quashing the proceeding of PWA Case
No.18 of 2005 Ajit Singh Vs. Merind Ltd.
and another pending before the Prescribed
Authority (under Payment of Wages Act)/
Assistant Labour Commissioner, Bijnor,
Uttar Pradesh. Another relief for writ of
prohibition restraining the respondent
no.1 from entertaining or adjudicating
upon the proceedings in PWA Case No.18
of 2005 has also been sought for. This
petition was allowed in open Court on
2.12.2008 with indication that reasons
will be given later on, therefore, the same
are given hereinafter.