# Shyam Kumar Dwivedi v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 158
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-14
- **Case number:** Writ Petition No. 1734 (SB) of 2001
- **Bench:** Rajiv Sharma, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-kumar-dwivedi-v-state-of-u-p-and-others-42147
- **Pages:** 5

## Text

158 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Learned counsel for appellant agrees that
raise in fine would not amount to
enhancement.

12. Consequently, in the interest of
justice, impugned order is modified.

13. Appeal is partly allowed.
Conviction under Section 5(2) read with
Section 5(1)(E) is maintained, however,
sentence is modified to the extent of
period undergone in addition to fine of
Rs.100,000/- (one lac) which will be
deposited by the appellant within three
months from today. If appellant does not
deposit the abovesaid amount within the
said period, he will have to undergo one
year simple imprisonment.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.02.2012

BEFORE
THE HON'BLE RAJIV SHARMA,J.
THE HON'BLE S.C. CHAURASIA,J.

Writ Petition No. 1734 (SB) of 2001

Shyam Kumar Dwivedi
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Constitution of India-Article 226-interest
on
delayed
payment-post
retiral
benefits-petitioner
retired
on
30.02.2001-no explanation about delay
more than 18 years-Rs. 50,000 of lump
sum amount given.

Held: Para 14,15 and 16

Thus the aforesaid decisions makes it
clear that the claim of interest on
delayed payment of retiral dues flows
from the fundamental rights guaranteed
under the Constitution. Claim for interest
cannot be held to be a stale claim as
right
to
claim
interest
on
delayed
payment of retiral dues accrues due to
continuing wrong committed by the
State respondents for withholding the
payment of the petitioner's retiral dues
causing
continuous
injury
to
the
petitioner until such payment is made.

The attitude of indifference cannot be
forgiven. In the present case, the delay
in payment of retiral dues is about 18
long years, which is entirely unjustified
and cannot be treated to be reasonable
by any stretch of imagination. The
Department itself is responsible for
bringing down such a situation, for
which adequate compensation should be
paid to the petitioner.

In the facts and circumstances, we find
that award of a lump sump amount as
interest would secure the ends of justice
and compensate the loss caused to the
petitioner on account of interest which
he
could
have
earned,
if
he
had
deposited the amount in bank or in post
office coupled with mental harassment
with which he had undergone during
these long years.
Case law discussed:
AIR 1984 SC 1905; (1981) 1 SCC 449; (2003)
3 SCC 40; (2009) 16 SCC; (2001) 6 SCC 591;
2008 (3) SCC 44

(Delivered by Hon'ble Rajiv Sharma,J.)

1. Heard Sri Farooq Ahmad, learned
counsel for the petitioner, Sri Sanjay
Bhasin, learned Standing Counsel and Sri
D. K. Seth, learned counsel for the opposite
party No.4.

2. There can be no better example
than this case, which is a classical
illustration of sorry state of affairs,
whimsical attitude of State authorities and
how
the
functionaries
of
the
State
Government are functioning, resulting in
mental agony, all sorts of harassment and
injury to a Government Servant, which is
difficult
to
be
compensated.
1 All] Shyam Kumar Dwivedi V. State of U.P. and others

159

3. Petitioner, while working on the
post of Block Development Officer attained
the age of superannuation on 30.6.1983.
Prior to retirement, petitioner was subjected
to disciplinary proceedings and was served
with
a
charge
sheet
on
30.8.1982.
Ultimately, the Agricultural Production
Commissioner passed the punishment order
dated 19.4.1983. Thereafter, the District
Magistrate, Sitapur passed an order of
recovery. Being aggrieved, the petitioner
filed a claim petition before the State Public
Services Tribunal, which was dismissed.
Thereafter he assailed the order of
punishment as well as the order of Tribunal
before this Court by filing a writ petition
No. 1345 (SB) of 1991. This Court while
entertaining the writ petition stayed the
order
of
recovery
dated
22.6.1983.
Ultimately, this writ petition was allowed
by this Court and the recovery order for a
sum of Rs. 75,066.15 was set aside.

4. In the instant writ petition, we are
not concerned with the aforesaid litigation
as the main relief sought in the writ petition
is for payment of interest at the rate of 18%
on the delayed payment of post retiral dues.

5. It appears that during pendency of
the aforesaid litigation, the petitioner
worked on the post of Block Development
Officer, Mahauli, District Sitapur and
ultimately retired from the said post. The
opposite parties without any rhyme and
reason did not pay the post-retiral dues.
Vide order dated 4.8.1984, the Agricultural
Production Commissioner passed an order
granting provisional pension of Rs. 460/-
w.e.f. 1.7.1983. It is not in dispute that on
24.8.1998, the State Government issued an
order for revising pension of the petitioner,
who had been retired prior to 1.1.1986 and
in view of the Government Order dated
24.8.1998,
the
District
Development
Officer, Sitapur passed an order for revising
pension of the petitioner. Petitioner made
his sincere efforts and devoted a lot of time
of retired life in getting his post-retiral dues
but all his efforts went in vain. In the
counter affidavit, it has been admitted that
there is delay in payment of post-retiral
dues, but for it, the petitioner himself is
liable. It has also been stated that the
Treasury Officer, Lucknow, after adjusting
a sum of Rs.75,066.15/- which was to be
recovered from the petitioner, paid a sum of
Rs.2,82,796 to the petitioner vide Cheque
No. 796508 dated 14.8.2001.

6. The fact remains that the petitioner
had retired in the year 1983. It shows total
indifference on the part of the respondents
towards suffering of the petitioner, who had
served them during the best part of his life.
This Court does not approve such attitude
towards employees by the respondent. The
inordinate delay in payment of post-retiral
dues is substantiated by the facts mentioned
in the counter affidavit filed on behalf of
Accountant General, Allahabad, who has
also been arrayed as opposite party no.4 in
the writ petition. There is no dispute in the
fact that the petitioner attained the age of
superannuation
on
30.6.1983.
The
Accountant General in his counter affidavit
has stated in paragraph 6 of the counter
affidavit that the petitioner's pension papers
were sent to his office vide letter dated
19.11.1999 for the first time alongwith a
letter of recovery dated 27.12.1999. His
pension papers were returned vide letter
dated
29.3.2000
to
the
concerned
department as complete papers of service
book were not sent. It has further been
stated that pension papers were received
back from the department through letter
dated 22.2.2001 i.e. about 11 months after
the letter dated 29.3.2000. It was also
indicated in the said letter dated 22.2.2001
160 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

that for providing the copy of service book,
it will take some more time. The petitioner
also wrote a letter for humanitarian
consideration and for payment of his
pensionary
dues.
Vide
letter
dated
20.6.2001, the authority for payment was
issued. Lastly, it has been clarified by the
opposite party no.4 that there is no delay on
the part of the respondent no.4. As regard
payment of interest on delayed payment of
pension and gratuity, as per G.O. No. Sa-3664/Das-971/80 dated 29.4.1983 and No.
Sa-3-1519/Das 1997 dated 15.7.1997, the
action is required to be taken by the
concerned
department,
not
by
the
respondent no.4. Thus, from the aforesaid
facts, one thing is crystal clear that there is
an inordinate delay in processing the
pension papers and payment of post-retiral
dues on the part of the Officers of the
Department concerned. Needless to observe
that even the provisions of the U.P. Pension
Cases
(Submission,
Disposal
and
Avoidance of Delay) Rules, 1995 were
violated

7. Delay in settlement of retiral
benefits is frustrating and must be avoided
at all costs. Such delays are occurring even
in regard to family pensions for which too
there is a prescribed procedure. This is
indeed unfortunate. In cases where a retired
Government Servant claims interest for
delayed payment, the Court can certainly
keep in mind the time-schedule prescribed
in the Rules/Instructions apart from other
relevant factors applicable to each case. The
retirement benefits were payable to the
petitioner after the date of retirement ie.
30.6.1983, but it took of about 16 years by
the Department in sending the complete
papers to the Accountant General, which
shows the callous attitude of the Officers of
the Department. Owing to lethargic attitude
of the Officers of the Department in sending
the complete papers to the Accountant
General, the petitioner was put to serious
distress. Because of non completion of
necessary formalities and sending complete
papers, the Accountant General could issue
the authority only on 20.6.2001, when the
necessary papers were made available by
the Department.

8. Right to receive pension is a
fundamental right which can be curtailed
only in the manner provided in the
Constitution. In Salabuddin Mohd. Yunus
vs. State of Andhra Pradesh, AIR 1984 SC
1905, it was held that pension is property
within the meaning of Article 31(1) of the
Constitution and it is also a right under
Article 19 (1) (f) which could not be
restricted even as provided under clause (5)
of Article 19 and that clause has no
application to the right to receive pension.

9. In Som Prakash Rekhi v. Union of
India, (1981) 1 SCC 449, the Apex Court
observed that the pension and other retiral
benefits cannot be withheld or adjusted or
appropriated for the satisfaction of any other
dues
outstanding
against
the
retired
employee. The aforesaid principle was
reiterated in R. Kapur vs. Director of
Inspection
(Painting
and
Publication)
Income Tax; (1994) 6 SCC 589.

10. In H. Gangahanume Gowda vs.
Karnataka Agro Industries Corporation
(2003) 3 SCC 40, the Apex Court observed
that employees on retirement have valuable
rights to get gratuity and any culpable delay
in payment of gratuity must be visited with
the penalty of payment of interest.

11.

In
Kerala
State
Cashew
Development Corporation Limited and
another vs. N. Asokan (2009) 16 SCC,
when eight years' delay was found in
1 All] Shyam Kumar Dwivedi V. State of U.P. and others

161
payment of gratuity, the Apex Court
directed for payment of interest on the
delayed payment of gratuity in compliance
with Section 7(3-A) of the Payment of
Gratuity Act, 1972.

12. In Gorakhpur University vs. Dr
Shitla Prasad Nagendra (2001) 6 SCC 591
and in series of other judgments, the Apex
Court has reiterated that pension and
gratuity are no longer matters of any bounty
to be distributed by the government but are
valuable rights acquired and property in
their hands and any delay in settlement and
disbursement whereof should be viewed
seriously and dealt with severely by
imposing penalty in the form of payment of
interest.

13. The Hon'ble Supreme Court in
S.K.Dua vs. State of Hariyana and another
reported in 2008(3) SCC 44 has held that
interest of delayed payment of retirement
benefits legally sustainable in view of
Articles 14, 19 and 21 of the Constitution,
which reads as follows:-

"In the circumstances, prima-facie, we
are of the view that the grievance voiced by
the appellant appears to be well founded
that he would be entitled to interest on such
benefits. If there are statutory rules
occupying the field, the appellant could
claim payment of interest relying on such
rules.
If
there
are
administrative
instructions, guidelines or norms prescribed
for the purpose, the appellant may claim
benefit of interest on that basis. But even in
absence of statutory rules, administrative
instructions or guidelines, an employee can
claim interest under Part III of the
Constitution relying on Articles 14,19 and
21 of the Constitution."

14. Thus the aforesaid decisions
makes it clear that the claim of interest on
delayed payment of retiral dues flows from
the fundamental rights guaranteed under the
Constitution. Claim for interest cannot be
held to be a stale claim as right to claim
interest on delayed payment of retiral dues
accrues due to continuing wrong committed
by the State respondents for withholding the
payment of the petitioner's retiral dues
causing continuous injury to the petitioner
until such payment is made.

15. The attitude of indifference cannot
be forgiven. In the present case, the delay in
payment of retiral dues is about 18 long
years, which is entirely unjustified and
cannot be treated to be reasonable by any
stretch of imagination. The Department
itself is responsible for bringing down such
a
situation,
for
which
adequate
compensation should be paid to the
petitioner.

16. In the facts and circumstances, we
find that award of a lump sump amount as
interest would secure the ends of justice and
compensate the loss caused to the petitioner
on account of interest which he could have
earned, if he had deposited the amount in
bank or in post office coupled with mental
harassment with which he had undergone
during these long years.

17. Taking into consideration the
holistic view of the matter and considering
the very peculiar facts and circumstances of
the case, we quantify Rs.5,00,000/- (Rupees
five lacs) as interest on the delayed payment
of post-retiral dues and direct the opposite
parties to pay the same within a maximum
period of three months from the date of
filing of a certified copy of this order with
the Commissioner, Rural Development,
Jawahar Bhawan, Lucknow. However, if
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

the department feels that any particular
officer is responsible for these laches and
indifference, in that event, after fixing the
responsibility, it would be open for the
department to recover such amount of
compensation from the said responsible
officer, even if he has retired in the
meantime.

18. The writ petition stands allowed in
above terms.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.02.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Service Single No. - 2725 of 1993

Ashok Kumar Varma

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri H.G.S. Parihar

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Compassionate
Appointment-petitioner
challenge the order-of his appointment
on class IV post-claiming appointment as
class III employees-itself goes to show
not facing penury condition-in garb of
compassionate appointment-claim status
by short circuit-without facing selection
for promotion-can not be acceptedpetition dismissed.

Held: Para 14

In such circumstances, if the petitioner is
not inclined to accept the aforesaid
appointment he cannot claim that he
should be appointed on compassionate
to the better status which shows that
the petitioner is not actually facing the
condition of penury and appointment on
compassionate basis is not being claimed
on account of financial scarcity but to
claim an office of the status by short
circuit way ignoring the process of
regular selection which is contrary to the
very
concept
of
compassionate
appointment.
Case law discussed:
1997 (11) SCC 390; 1999 (I) LLJ 539; AIR
1998 SC 2230; AIR 2000 SC 2782; AIR 2004
SC 4155; AIR 1998 SC 2612; AIR 2005 SC
106; 2009 (6) SCC 481; 2011 (4) SCALE 308;
2011 (3) ADJ 91; Nagesh Chandra Vs. Chief
Engineer, Vivasthan Ga Warg & Ors. decided
on 7th January, 2011 in Special Appeal No.36
of 2011

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

1. Sri H.G.S.Parihar, learned counsel
for the petitioner states that he has no
instructions in the matter. No other
counsel has appeared. However, I have
perused the record.

2. The petitioner has sought
compassionate appointment and by means
of the order dated 24.3.1993 he was
appointed as Class IV employee. The
aforesaid order is under challenge and the
petitioner
has
sought
a
mandamus
commanding the respondents to appoint
him on Class III post on compassionate
basis.

3. Repeatedly, it has been held that
the purpose and object of compassionate
appointment is to enable the members of
family of the deceased employee in
penury, due to sudden demise of the sole
breadwinner, get support and succour to
sustain themselves and not to face
hardship for their bare sustenance.

4. In Managing Director, MMTC
Ltd., New Delhi and Anr. Vs. Pramoda