# Rajendra Singh {N-State} v. State of U.P.Through Secy.Home and 7 others

- **Citation:** (2011) 2 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-31
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-n-state-v-state-of-u-p-through-secy-home-and-7-others-41916
- **Pages:** 7

## Headnote

Constitution of India, Article 22-Revision
and gravity-father of Petitioner-working
as Police constable retired on 08.06.1967
died on 11.08.1981-mother also died
22.01.94 without pension even after
expiry of 13 years and 11 years in
litigation-no plausible amount made in
Courts affidavit except process going onheld-shocking-pension
attained
the
status of Fundamental Right considering
extraordinary delay exumplory cost of
Rs. 2,50000/- imposed with direction to
pay entire amount with 10% interestwithin 3 month.

Held: Para 19

In view of the above, I have no
hesitation in holding that non payment
of
retiral
benefits
and
others
to
petitioner
is
wholly
arbitrary
and
unreasonable. There was no justification
at all for respondents to delay payment
thereof.
Case law discussed:
AIR 1983 SC 130; 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; Shamal Chand Tiwari Vs. State
of U.P. & Ors. (Writ Petition No.34804 of
2004) decided on 6.12.2005; (1987) 4 SCC
328; (1994) 6 SCC 589; AIR 1997 SC 27;
(1999) 3 SCC 438; (2008) 3 SCC 44; 2011 (2)
ADJ 608; (2008) 119 FLR 787; AIR 2005 SC
2755;

## Text

2 All] Rajendra Singh {N-State} V. State of U.P. and others
531
ORIGINAL JURISDICTION
CIVILSIDE
DATED: LUCKNOW 31.05.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Service Single No. - 2099 of 2001

Rajendra Singh {N-State}
 ...Petitioner
Versus
State of U.P.Through Secy.Home and 7
others

 ...Respondents

Counsel for the Petitioner:
Sri V.K.Shukla
Sri Nishi Agarwal

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 22-Revision
and gravity-father of Petitioner-working
as Police constable retired on 08.06.1967
died on 11.08.1981-mother also died
22.01.94 without pension even after
expiry of 13 years and 11 years in
litigation-no plausible amount made in
Courts affidavit except process going onheld-shocking-pension
attained
the
status of Fundamental Right considering
extraordinary delay exumplory cost of
Rs. 2,50000/- imposed with direction to
pay entire amount with 10% interestwithin 3 month.

Held: Para 19

In view of the above, I have no
hesitation in holding that non payment
of
retiral
benefits
and
others
to
petitioner
is
wholly
arbitrary
and
unreasonable. There was no justification
at all for respondents to delay payment
thereof.
Case law discussed:
AIR 1983 SC 130; 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; Shamal Chand Tiwari Vs. State
of U.P. & Ors. (Writ Petition No.34804 of
2004) decided on 6.12.2005; (1987) 4 SCC
328; (1994) 6 SCC 589; AIR 1997 SC 27;
(1999) 3 SCC 438; (2008) 3 SCC 44; 2011 (2)
ADJ 608; (2008) 119 FLR 787; AIR 2005 SC
2755;

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

1. List revised. None appeared on
behalf of the petitioner. However, I have
perused the record.

2. The petitioner's father retired on 8th
July, 1967 from the post of constable and
died on 11th August, 1981 leaving his
widow i.e. mother of the petitioner and
children. The family pension to widow was
not paid by the respondents though the
petitioner and his mother approached
respondents repeatedly. Ultimately the
widow also died on 22nd January, 1994.
Thereafter the respondents continued to
make correspondence from one to another
authorities. The fact however remains that
family
pension
from
11.08.1981
to
22.01.1994 was not paid to the unfortunate
widow of the deceased employee and even
after her death to the legal heirs i.e. the
petitioner till 2001 when this writ petition
was filed and even thereafter.

3. In the counter affidavit respondents
have given details of various letters issued
from one authority to another but the fact
remains that even in counter affidavit there
is not a single averment, by the time it was
filed, that family pension has already been
paid to the petitioner. It only says that
proceeding have been initiated and are
pending.

4. This is really a very unfortunate
case where old widow of a deceased
employee continued to suffer and starve for
not receiving family pension for almost 13
years and ultimately died without getting it.
The legal heirs of the ex deceased employee
532 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
is/are still contesting the matter for the last
11 years in this Court and prior thereto
about 7 years were pursuing in the
Department.

5. Today, one cannot dispute that
pension
has
attained
the
status
of
fundamental right, a facet of right to earn
livelihood enshrined under Article 21 of the
Constitution. Pension and retiral benefits
have been held deferred wages which an
employee earn by rendering service for a
particular length of time. This is what was
held by Apex Court in D.S.Nakara Vs.
Union of India AIR 1983 SC 130. This
proposition is almost settled. To defer this
right of an employee for an unreasonably
long period, one must have an authority in
law which more or the less must be specific
and clear. On the mere pretext of caution or
procedural jargon, such right cannot be
made to suffer for infinite in any manner.
Whenever such an occasion is brought to
notice, this Court has risen to protect the
poor and helpless retired employee and their
family. The Apex Court in D.S. Nakara
(supra) has observed:

"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."
(Para 20).

"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 underserved want was
recognized and as a first steps 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
not 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." (Para 22).

"Pensions to civil employees of the
Government and the defence personnel as
administered in India appear to be a
compensation for service rendered in the
past." (Para 28).

"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 socioeconomic justice which inheres economic
security in the fall of life when physical and
mental prowess is ebbing corresponding to
aging 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 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." (Para 29)

6. Withholding of pension and other
retiral benefits of retired employees for
years together is not only illegal and
arbitrary but a sin if not an offence since no
2 All] Rajendra Singh {N-State} V. State of U.P. and others
533
law has declared so. The officials, who are
still in service and are instrumental in such
delay causing harassment to the retired
employee must however feel afraid of
committing such a sin. It is morally and
socially obnoxious. It is also against the
concept of social and economic justice
which is one of the founding pillar of our
constitution.

7. The respondents being "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 exemployees and their legal heirs 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.

8. In our system, the Constitution is
supreme, but the real power 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.

9. 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
534 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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)

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

11. 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.

12. 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".

13. 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."

14.

In
Delhi
Development
Authority Vs. Skipper Construction
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."

15. Now, coming to another aspect
of the matter, if retiral benefits are paid
with extra ordinary delay, the Court
should award suitable interest which is
compensatory in nature so as to cause
some solace to the harassed employee. No
Government official should have the
liberty of harassing a hopeless employee
or his heirs by withholding his/her lawful
dues for a long time and thereafter to
escape from any liability so as to boast
2 All] Rajendra Singh {N-State} V. State of U.P. and others
535
that nobody can touch him even if he
commits an ex facie illegal, unjust or
arbitrary act. Every authority howsoever
high must always keep in mind that
nobody is above law. The hands of justice
are meant not only to catch out such
person but it is also the constitutional duty
of Court of law to pass suitable orders in
such matters so that such illegal acts may
not be repeated, not only by him/her but
others also. This should be a lesson to
everyone committing such unjust act.

16. Interest on delayed payment on
retiral dues has been upheld time and
against in a catena of decision. This Court
in Shamal Chand Tiwari Vs. State of
U.P. & Ors. (Writ Petition No.34804 of
2004) decided on 6.12.2005 held:

"Now the question comes about
entitlement of the petitioner for interest on
delayed payment of retiral benefits. Since
the date of retirement is known to the
respondents well in advance, there is no
reason for them not to make arrangement
for payment of retiral benefits to the
petitioner well in advance so that as soon
as the employee retires, his retiral
benefits are paid on the date of retirement
or within reasonable time thereafter.
Inaction and inordinate delay in payment
of retiral benefits is nothing but culpable
delay warranting liability of interest on
such dues. In the case of State of Kerala
and others Vs. M. Padmnanaban Nair,
1985 (1) SLR-750, the Hon'ble Supreme
Court has held as follows:

"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 at
least 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 panel
interest on these dues at the current
market rate should commence at the
expiry of two months from the date of
retirement."

In this view of the matter, this Court
is of the view that the claim of the
petitioner for interest on the delayed
payment of retiral benefits has to be
sustained."

17. It has been followed and
reiterated in O.P. Gupta Vs. Union of
India and others (1987) 4 SCC 328, R.
Kapur Vs. Director of Inspection (1994)
6 SCC 589, S.R. Bhanrate Vs. Union of
India and others AIR 1997 SC 27, Dr.
Uma Agarwal Vs. State of U.P. &
another (1999) 3 SCC 438 and S.K. Dua
Vs. State of Haryana and another
(2008) 3 SCC 44.

18. A Division Bench of this Court
has also considered the question of award
of interest on delayed payment of retiral
benefits recently in Rajeshwar Swarup
Gupta Vs. State of U.P. & others 2011
(2) ADJ 608 and, relying on the Apex
Court decision in M. Padmnanaban Nair
(supra) and its several follow up as also
an earlier Division Bench judgement of
this Court in Smt. Kavita Kumar Vs.
State of U.P. & others (2008) 119 FLR
536 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
787, has awarded 12% interest in the said
case.

19. In view of the above, I have no
hesitation in holding that non payment of
retiral benefits and others to petitioner is
wholly arbitrary and unreasonable. There
was no justification at all for respondents
to delay payment thereof.

20. In a case where the person who
has
invoked
extraordinary
equitable
jurisdiction satisfying the Court that in the
hands
of
authorities
of
state
instrumentality, individual has suffered
grievously, the Court, while deciding the
matter, can also pass an order of
exemplary cost compensatory in nature so
that such authorities may not recur the
similar negligence in future. In Gurpal
Singh Vs. State of Punjab and another
AIR 2005 SC 2755 it was held that the
Court must do justice by promotion of
good faith and prevent law from crafty
invasion.
The
predicament
of
the
petitioner is evident from the fact that for
thirteen years his mother continued to
pursue to department in the hope of
getting
family
pension
and
died
unsuccessfully and then for seven years,
the petitioner so struggled and now for
eleven years is contesting the matter in
this Court. In this case respondents have
compelled the helpless poor widow of the
deceased employee to run from pillar to
post for 13 years unsuccessfully and to
die, may be of starvation or for some
other reasons, since admittedly, she was
not paid family pension, frustrating the
very object of making provisions for such
pension. In the old days, particularly after
death of husband, Department ought to
have shown much more concern and
sympathy to the old widow and instead of
helping her by extending a benevolent
hand providing family pension to her,
which was not a charity but her right,
respondents and their officials in a most
arrogant and apathetic manner continued
to defy their obligation and duty and were
successful in the rottening of the
petitioner's destitute mother penniless.
The petitioner, the legal heir, also made to
run for almost 7 years after the death of
mother and till the filing of the writ
petition by not making such payment,
which was his right, this matter is pending
before this Court for almost 10 years yet
learned Standing Counsel could not tell
this Court that respondents have wake up
and wait of petitioner is now over. This
journey of 30 years from the angle of the
petitioner and his deceased mother after
the death of petitioner's father is a long
telltale story which one can easily
visualize. There cannot be a better case
than this one, where respondents must be
saddled with an exemplary cost so that in
future one may not venture to repeat this
kind of attitude. It is in the fitness of the
things that this writ petition should be
allowed with exemplary cost.

21. The writ petition is accordingly
allowed. Respondents are directed to pay
entire arrears of family pension, if not
already paid, to the petitioner within three
months from the date of production of a
certified copy of this order.

22. The petitioner shall also entitled
to interest which shall be paid at the rate
of 10% p.a. from the date family pension
fell due to the legal heirs of the deceased
employee till the payment is actually
made.

23. The petitioner shall also be
entitled to cost which is quantified to
Rs.2,50,000/-. However, at the first
2 All] Dr. B. Sahu V. State of U.P. and others
537
instance it shall be paid by respondent
No.1 along with arrears of family pension,
as directed above, but respondent No.1
shall have liberty to recover cost as well
as amount of interest paid to the petitioner
under this order(s) from the official
concerned, who is/are found responsible
for such extra ordinary delay in payment
of aforesaid dues, after making enquiry in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.05.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA,J.

Criminal Misc. Case No. 3994 of 2007
(U/S 482, Cr.P.C.)

Dr. B. Sahu

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

Code of Criminal Procedure, Section 482Quashing of complaint case-allegation
disclosed that certain employees were
selected but not given appointment
letter-as some of them stolen secret
formula and using the same for the
benefits of another company-at the most
it can be violation of Patent Act or
Copyright
Act-can
be
properly
adjudicated
by
Civil
Court-complaint
quashed

Held: Para 4

Upon perusal of the record, I find that
there is allegation to disclose the secrecy
of the respondent company as well as
stealing of some secret formulas, which
are used by the respondent company by
the selected candidates, in which the
petitioner is alleged to be conspired with
them, whereas I am of the view that
such allegation is the subject matter of
civil suit. If there is a violation of Patent
Act or Copyright Act, it is open for the
respondent to take necessary action
therein,
but
once
the
respondentcompany's
employees
were
selected
through the open recruitment by the
petitioner, it cannot be said that he has
committed any fraud, as alleged.
Case law discussed:
A.I.R. 1955 Patna 288 (Vol. 42, C.N. 52)

(Delivered by Hon'ble S.N. Shukla,J.)

1. Heard Mr. Sunil Kumar Shukla,
learned counsel for the petitioner, Mr.
Kunwar Mridul Rakesh, learned senior
Advocate for the respondent no. 2 as well
as learned A.G.A.

2. The petitioner has challenged the
complaint registered as complaint case no.
4984 of 2006 as well as the order passed
therein on 25th of January, 2007. The
petitioner is an Executive Director and
President of Futura Polyesters Limited.
He recruited some Laboratory Assistant.
Under the process of recruitment, six
persons were interviewed out of whom
four candidates namely Mr. Raghvendra
Singh, Dr. Ajit Singh, Mr. Ashish
Srivastava and Mr. Jay Shukla were
selected. It appears that some of the
employee of the respondent company has
been selected in the petitioner's company.
The petitioner denies from any such
agreement as is entered between those
selected candidates and respondent. It is
further stated that if there is a violation of
any agreement, that is the subject matter
of civil dispute, but for that, the petitioner
cannot be prosecuted. He also informs
that respondent company had filed a civil
suit for recovery of money against its
employees i.e. Civil Suit No. 711 of 2006
and Civil Suit No. 713 of 2006. The
respondent company alleges that those
selected candidates have stolen the secrets
formula from its Company. It is also the