# Shiv Shankar Mishra v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-15
- **Case number:** Special Appeal Defective No. 10 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-shankar-mishra-v-state-of-u-p-ors-43254
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Service
law-claim of interest on delayed payment
of arrears of salary as well as pension-in
spite of earlier direction of Writ Courtpayment made on highly belated stageonly reason disclosed for non payment the
paucity of fund-held-petitioner/appellant
entitled for interest on delayed payment
on arrears of salary as well as pension-to
this extent order by Single Judge modifiedappeal disposed of.
Held: Para-9
We,
therefore,
have
come
to
the
conclusion that the learned Single Judge
was not justified in declining the prayer
for the payment of interest. Insofar as
the payment which was made to the
appellant
on
18
March
2014
is
concerned, the appellant was clearly
entitled to the payment of interest from
the date of the filing of the writ petition
in 2010 (Writ -A No. 47141 of 2010). The
appellant would also be entitled to the
payment of interest on the pensionary
payment which was unlawfully withheld
from March 2014 until actual payment is
made. We direct that interest shall be
admissible to the appellant at the rate of
9% per annum from the date on which
the respective payments on account of
arrears of salary, or as the case may be,
towards pensionary dues became due
and payable as directed earlier. Interest
shall be computed in terms of the
aforesaid directions within a period of
three months from the date of receipt of
a certified copy of this order. The order
of the learned Single Judge declining
interest shall to that extent stand set
aside and be substituted by the aforesaid
directions.
Case Law discussed:
(1985) 1 SCC 429; (2014) 8 SCC 894.

## Text

1 All]. Shiv Shankar Mishra Vs. State of U.P. & Ors.
1
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.01.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SUNEET KUMAR, J.
Special Appeal Defective No. 10 of 2015
Shiv Shankar Mishra
...Appellant
Versus
State of U.P. & Ors.
..Respondents
Counsel for the Appellant:
Sri R.K. Pandey
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Service
law-claim of interest on delayed payment
of arrears of salary as well as pension-in
spite of earlier direction of Writ Courtpayment made on highly belated stageonly reason disclosed for non payment the
paucity of fund-held-petitioner/appellant
entitled for interest on delayed payment
on arrears of salary as well as pension-to
this extent order by Single Judge modifiedappeal disposed of.
Held: Para-9
We,
therefore,
have
come
to
the
conclusion that the learned Single Judge
was not justified in declining the prayer
for the payment of interest. Insofar as
the payment which was made to the
appellant
on
18
March
2014
is
concerned, the appellant was clearly
entitled to the payment of interest from
the date of the filing of the writ petition
in 2010 (Writ -A No. 47141 of 2010). The
appellant would also be entitled to the
payment of interest on the pensionary
payment which was unlawfully withheld
from March 2014 until actual payment is
made. We direct that interest shall be
admissible to the appellant at the rate of
9% per annum from the date on which
the respective payments on account of
arrears of salary, or as the case may be,
towards pensionary dues became due
and payable as directed earlier. Interest
shall be computed in terms of the
aforesaid directions within a period of
three months from the date of receipt of
a certified copy of this order. The order
of the learned Single Judge declining
interest shall to that extent stand set
aside and be substituted by the aforesaid
directions.
Case Law discussed:
(1985) 1 SCC 429; (2014) 8 SCC 894.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The appellant was working as a
collection amin in the office of the
Assistant
Commissioner
/
District
Assistant
Registrar,
Cooperative
Societies, Bhadohi, impleaded as third
respondent to these proceedings. The
appellant
attained
the
age
of
superannuation on 28 February 2013. His
grievance was that during the tenure of
his service, he was not paid his monthly
salary for thirty one months between
August 2004 to June 2007 and from
January 2010 till the date of his retirement
without any justification. Moreover, the
appellant was not allowed the benefit of
the payment of pay fixation and arrears in
accordance with the report of the Sixth
Pay Commission as adopted by the State.
He filed a writ petition (Writ-A No.
47141 of 2010) for seeking the release of
his salary and other retiral dues. A counter
was filed on behalf of the respondents
stating that an amount which was due had
been paid while the balance would be
paid over to the appellant as and when
funds were made available. The learned
Single Judge by an order dated 11
September 2013 disposed of the petition
2
 INDIAN LAW REPORTS ALLAHABAD SERIES
with the following observations and
directions:
"The paucity of fund cannot be taken
as a ground for not paying the admitted
dues to the petitioner. Petitioner has since
retired and, therefore, the petitioner
should be duly paid his arrears.
It is submitted that even the pension
etc. has not been finalized which is
causing grave hardship to the petitioner.
Under the circumstances, the writ
petition is disposed of with the direction
that the respondent no. 2 will firstly pay
the
entire
admitted
arrears
to the
petitioner within a period of four months
and will take immediate steps for
determination of pension etc. within the
same period and will make all endeavour
to release the pension and other retiral
dues to the petitioner within the same
period.
With the aforesaid directions, the
writ petition is finally disposed of."
2.
Despite the order of the learned
Single Judge, the admitted arrears were not
paid within a period of four months,
following which a contempt petition was
filed (Contempt Application (Civil) No.
1765 of 2014). On 13 March 2014, a
learned Single Judge acting on the contempt
application granted one more opportunity to
the respondents to comply with the order
within one month failing which it was
directed that the opposite parties would
remain present before the Court.
3. On 17 February 2014, the
Assistant Commissioner and the Assistant
Registrar issued a letter to the Additional
Commissioner for sanctioning an amount
of Rs.12,19,054.00 to the appellant.
Eventually, on 20 March 2014, a
communication was addressed to the
Assistant Commissioner stating that a
cheque in the amount of Rs.12,19,054.00
dated 18 March 2014 had been made
over.
4.
The
appellant
moved
representations on 5 May 2014 and again on
10 June 2014 complaining that his pension
had not been released from the month of
March 2014 and seeking the payment of
interest on the delayed payment of his dues.
A writ petition was filed for a direction to
pay interest at the rate of 18% per annum on
the delayed payment of the arrears of
monthly salary and retiral dues. A
mandamus was also sought for the payment
of the monthly pension of the appellant
w.e.f. March 2014.
5. The learned Single Judge, by an
order dated 26 November 2014, directed
that in view of the fact that the pensionary
payments have been stopped w.e.f. March
2014, these should be paid on or before
31 January 2015 failing which, if the
payment was not made by the said date,
the appellant would be entitled for interest
@ 9%. The learned Single Judge has
declined to grant interest on the delayed
payment of arrears of salary. Moreover,
the claim for interest on the delayed
payment of the pensionary benefits has
also been declined in the sense that if
payment is made by 31 January 2015, no
interest would be admissible. The learned
Single Judge has noted that payment was
not released on the ground of paucity of
funds and hence, there was no willful
default on the part of the respondents in
the payment of his salary or pensionary
dues. This ground has weighed in denying
the claim for interest.
6. The present case is an unfortunate
instance where an employee has been left
1 All]. Shiv Shankar Mishra Vs. State of U.P. & Ors.
3
in the lurch after having rendered long
years of service. Both the arrears on
account of salary as well as pensionary
dues have not been paid on time. When
the appellant had moved a writ petition
before the Court, an order was passed on
11 September 2013 directing the payment
of the admitted arrears within four months
and for immediate steps to determine the
pensionary dues. This order was not
complied with following which, he was
constrained to file contempt proceedings.
It is only thereafter that on 18 March 2014
the payment of arrears of salary from
August 2010 until February 2013 was
made. It was only then that the appellant
was also paid arrears on account of
gratuity, pension and other retiral dues.
There was no reason or justification to
withhold the payment of salary during the
period when the appellant had worked
when salary fell due for payment or for
the non payment of pensionary and retiral
dues, the latter within a reasonable period
of retirement. There was no lapse on the
part of the appellant. The paucity of funds
cannot surely be held up as an excuse not
to pay the salary of an employee who had
worked for the period for which his salary
is
due.
Similarly,
pensionary
dues
constitute a rightful entitlement of an
employee. The State cannot be heard to
say that it would fail to pay the pension
on time and yet excuse itself from the
liability to pay interest.
7. In the case of State of Kerala Vs
M Padmanabhan Nair and Som Prakash1,
the Supreme Court held as follows:
"Pension and gratuity are no longer
any bounty to be distributed by the
Government to its employees on their
retirement but have become, under the
decisions of this Court, valuable rights
and property in their hands and any
culpable
delay
in
settlement
and
disbursement thereof must be visited with
the penalty of payment of interest at the
current market rate till actual payment."
8. In a more recent decision in D D
Tewari Vs Uttar Haryana Bijli Vitran
Nigam Ltd2, the Supreme Court observed
that any culpable delay in settlement and
disbursement thereof is to be visited with
penalty of payment of interest. Hence,
interest @ 9% on delayed payment was
awarded to be paid within six weeks
failing which interest @ 18% p.a. would
need
to
be
paid.
An
erroneous
withholding of gratuity amount to which
the employee is legally entitled, entails
penalty on the delayed payment.
9. We, therefore, have come to the
conclusion that the learned Single Judge
was not justified in declining the prayer
for the payment of interest. Insofar as the
payment which was made to the appellant
on 18 March 2014 is concerned, the
appellant
was clearly entitled to the
payment of interest from the date of the
filing of the writ petition in 2010 (Writ -A
No. 47141 of 2010). The appellant would
also be entitled to the payment of interest
on the pensionary payment which was
unlawfully withheld from March 2014
until actual payment is made. We direct
that interest shall be admissible to the
appellant at the rate of 9% per annum
from the date on which the respective
payments on account of arrears of salary,
or as the case may be, towards pensionary
dues became due and payable as directed
earlier. Interest shall be computed in
terms of the aforesaid directions within a
period of three months from the date of
receipt of a certified copy of this order.
The order of the learned Single Judge
4
 INDIAN LAW REPORTS ALLAHABAD SERIES
declining interest shall to that extent stand
set aside and be substituted by the
aforesaid directions.
10. The appeal is, accordingly, disposed
of. There shall be no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2015
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Special Appeal Defective No. 18 of 2015
State of U.P. & Ors.
...Appellants
Versus
Rana Shamsher Singh
...Respondent
Counsel for the Appellants:
Sri A.K. Roy, S.C.
Counsel for the Respondents:
Sri R.K. Singh
Constitution of India, Art.-226-arrears of
salary-petitioner/respondent
proceeded
on medical leave w.e.f. 21.02.13 to
21.07.2013-the
authority
treated
that
period on leave without pay-but imposed
punishment of censure for absence on
duty without prior information-appeal also
rejected-held-order
of
Single
Judge
justified-but
authorities
committed
mistake ignoring this aspect-if transfer
order passed during leave period and
medical leave application given at original
place of posting-employee can not be
faulted-such
treatment
absolutely
in
human approach-entitled for arrears of
salary apart from claim of medicalreimbursement
payable
within
two
months-appeal disposed of.
Held: Para-6
From record it is apparent that it is not
that respondent -Sub Inspector had not
informed
the
authorities
about
his
treatment.
He
did
inform
the
Superintendent of Police, Chandauli about
his medical treatment but objection of the
State-appellant is that since he had been
transferred during the period of absence,
he should have submitted application at
PAC Headquarter and not S.P. Chandauli
where he was earlier posted. Approach of
the appellant appears to be inhuman.
Order of his transfer was made during the
period of absence i.e. while undergoing
treatment, so even if application for leave
was made by him to the S.P. Chandauli
where he was earlier posted, his leave
application could have been forwarded by
the S.P. to the appropriate authority.
Further,
during
departmental
enquiry,
when it has been found that during the
period of absence he was undergoing
medical treatment relating to his kidney, it
cannot be said to be a case of absence
without justifiable cause. In the aforesaid
circumstances, the writ Court has rightly
come to the conclusion that merely
because he did not seek prior permission
or that he submitted applications in the
office where he was earlier posted, may be
a good ground for imposing some minor
punishment but the same cannot be a
ground for denial of pay for the period of
absence particularly when punishment of
censure has already been imposed. In our
view, instead of leave without pay, medical
leave should have been granted to the
respondent-Sub Inspector.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. There is delay of 78 days in filing
the present appeal. After hearing the
submissions and going through the affidavit
filed in support of delay condonation
application, in our view, the cause shown is
sufficient. Accordingly, the delay in filing
the appeal is condoned and the delay
condonation application is allowed.
2. State of U.P. has preferred this
intra Court appeal against judgment and
order dated 2.9.2014 passed in Writ