# Sri Bechu Rai Gram Sewak v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-31
- **Case number:** Civil Misc. Writ Petition No. 18717 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-bechu-rai-gram-sewak-v-state-of-u-p-ors-42824
- **Pages:** 7

## Headnote

Constitution of India, Art. 21- Right to
pension-petitioner retired on 31.07.97
working
as
Gram
Sewak-prior
to
retirement all formalities completed-but
can not be finalized-only reason that
service
record
not
traceable-
heldpetitioner can not be blamed-being
instrumentality of state authorities are
duty bound to discharge duties in more
responsible and caution manner-petition
allowed with direction to pay entire
amount of pension @ 10% per annum
w.e.f. date of retirement to the date of
actual payment is made-with cost of Rs.
10,000/-.

Held: Para-23&24

## Text

2 All] Sri Bechu Rai Gram Sewak Vs. State of U.P. & Ors.
581
strike down the impugned bye-laws
merely because Section 142 has not been
mentioned in the notification.

9. Consequently, there is no merit in this
writ petition. Rejected
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 18717 of 2004

Sri Bechu Rai Gram Sewak .....Petitioner
Versus
State of U.P. & Ors. ..........Respondents

Counsel for the Petitioner:
Sri Chandra Shekhar Srivastava, Sri
Pradeep Kumar Rai

Counsel for the Respondent:
C.S.C.

Constitution of India, Art. 21- Right to
pension-petitioner retired on 31.07.97
working
as
Gram
Sewak-prior
to
retirement all formalities completed-but
can not be finalized-only reason that
service
record
not
traceable-
heldpetitioner can not be blamed-being
instrumentality of state authorities are
duty bound to discharge duties in more
responsible and caution manner-petition
allowed with direction to pay entire
amount of pension @ 10% per annum
w.e.f. date of retirement to the date of
actual payment is made-with cost of Rs.
10,000/-.

Held: Para-23&24
23. In view of the above, I have no
hesitation in holding that non payment
of
retiral
benefits
and
others
to
petitioner is arbitrary and unreasonable.
There was no justification at all for
respondents to delay payment thereof.
24. In the circumstances, the petition is
allowed. The respondents are directed to
pay entire retiral dues of petitioner
alongwith interest @ 10% per annum,
which shall be computed from the date
of his retirement till actual payment is
made. This payment shall be made
within two months from the date of
service of this order.

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 175; W.P. No. 34804 OF 2004.

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

1. The only grievance of petitioner is
that he has not been paid retiral dues
though he has retired on 31.7.1997.

2. In the counter affidavit the
respondents have given the reason that
service record of petitioner could not be
verified by them and "no objection
certificate" has not been produced by
petitioner.

3.

Learned
counsel
for
the
respondents submitted that the petitioner
absconded from duty frequently and,
therefore, there was break in his service.
It is further submitted that the petitioner
could not make available photograph and
other
necessary
documents
for
the
purposes of pension despite several
reminders and as such, in absence of
requisite documents for sanction of
pension, the retiral dues could not be paid
in time for which petitioner was solely
responsible.

4. The brief facts relevant for the
purpose of writ petition are that the
petitioner was appointed on 17.1.1964 as
Gram Sewak and continued to work as
582 INDIAN LAW REPORTS ALLAHABAD SERIES
such till 31.7.1997 when he retired from
service. On 31.7.1997, for the first time, the
respondents' Department served an order
upon petitioner that on attaining the age of
superannuation, he would retire on 31.7.1997
and he is expected to furnish papers relating
to pension in the office so that pension
papers may be sent to the concerned
department for sanction. The aforesaid order
was complied by the petitioner but due to
non-availability of petitioner's Service Book,
which is maintained by the Department itself,
pension could not be sanctioned. Despite
several representations of petitioner time and
again, he failed to get anything. In the
meantime correspondence between the
authorities with respect to grant of pension
was going on but all in vain. It is also
asserted by petitioner that due to inaction of
respondent authorities and non-availability of
Service Book, petitioner's retiral benefits
could not have been sanctioned and he is at
the verge of starvation.

5. A counter affidavit has been filed
on behalf of respondents no. 1 to 4. On
material aspect for not sanctioning
pension
within
time,
there
is
no
satisfactory reply in the counter affidavit,
it is skatchy and no proper and specific
reply of the assertions made in the writ
petition has been given.

6. From a perusal of record, it is
evident that respondents have failed in
their duty to give the pensionary/retiral
benefits to petitioner within time or a
reasonable time, which they were bound
to do, under law. No suitable explanation
has been given in the counter affidavit for
denying retiral benefits to the petitioner
for such a long time.

7. 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, such right cannot be
made to suffer in any manner. Whenever
such an occasion is brought to notice, this
Court has risen to protect the poor and
helpless retired employee.

8. Besides above, it is also evident
from record that petitioner retired from
service on 31.7.1997 but due to non
availability of service record he could not
be paid retiral benefit within time.
Maintenance of service record is the
responsibility of respondent authorities. If
it is not traceable, the petitioner cannot be
blamed and made to suffer. According to
paragraph 10 of the counter affidavit,
certain payments were mae in June and
July, 2005 i.e. after about 8 years of the
retirement.

9.

A
system
controlled
by
bureaucrats can create wrangles to device
something which is formulated by policy
makers for the benefit of the citizen is
writ large from this case. A beneficial
scheme made for social welfare of old and
retired employees, can be twisted by the
system creating a nightmare to retired
employees, as is quite evident. The
constitutional obligation though pen down
to reach the people but Executive,
habitual of remaining static or move slow
2 All] Sri Bechu Rai Gram Sewak Vs. State of U.P. & Ors.
583
or no movement at all, can render such
scheme quite ineffective and inoperative.
Something due today may not be
available to a person right in time. It is
like a person starving today is assured
food to be provide after a month or two
by which time he may die of hunger or
the foodstuff itself may rot. If this is not
unconstitutional then what else can be.

10. Learned counsel appearing for
respondents
simply
tried
to
shift
responsibility of delayed payment of
retiral benefits to petitioner but the fact
remain undenied that more than eight
years delay is wholly unreasonable. The
petitioner, a retired employee, had no role
whatsoever except of suffering the cause.

11. As already said, pension is not a
bounty but a right of employee who has
served the employer for long and is
entitled for retiral benefits being his
deferred wages. 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
socio-economic 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 kind18717 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)

12. Withholding of pension and
other retiral benefits of retired employees
for years together is not only illegal and
584 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrary but a sin if not an offence since
no 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.

13. 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
an18717d 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.

14. Regarding harassment of a
common 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
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)

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

16. The respondents bei18717ng
"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
2 All] Sri Bechu Rai Gram Sewak Vs. State of U.P. & Ors.
585
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.

17. 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.

18. 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".

19. 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."

20. 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."

21. 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
by withholding his/her lawful dues for a
long time and thereafter to escape from
any liability so as to boast that nobody
can touch him even if he commits an ex
586 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

22. 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."

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

24. In the circumstances, the petition is
allowed. The respondents are directed to pay
entire retiral dues of petitioner alongwith
interest @ 10% per annum, which shall be
computed from the date of his retirement till
actual payment is made. This payment shall
be made within two months from the date of
service of this order.

25. The respondent no.1 shall also
have liberty to take appropriate action against
the officials found responsible for such
lapses and delay for payment of retiral dues.
A copy of such order may also be kept on
record of such officials, found responsible.

26. The petitioner shall be entitled
for payment of Rs. 10,000/- as costs from
the respondents.
--------
2 All] Pancham Lal Vs. State of U.P. & Ors.
587
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2014

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE BHARAT BHUSHAN, J.

Civil Misc. Writ Petition No. 18934 of 2002

Pancham Lal........................ .Petitioner
Versus
State of U.P. & Ors. .........Respondents

Counsel for the Petitioner:
Sri Krishna Ji Khare

Counsel for the Respondent:
C.S.C.

Constitution of India, Art.-226- Service LawNotional Promotion-petitioner along with 13
other junior person promoted on post of
manager
marketing
and
economic
investigation-all were treated to be approved
except petitioner-who in view of interim
order-working of promotional post retired-
and got salary-but pension given treating on
post of senior investigator-held once junior to
petitioner treated confirmed and given post
retrial benefits of promotional post-petitioner
can not be discriminated-no question of
recovery in absence of allegation of excess
payment of salary as to given to manager(M
& E-1)-entitled for same treatment.

Held: Para-11
Learned counsel for the petitioner further
contents that recommendation letter order
dated 7.7.1997 for promotion to the post of
Manager (M & E-1) shows that it was
against the vacancies of year 1995-96 and
had the petitioner been promoted within
time, the ad hoc appointment of petitioner
would have come to an end in view of law
laid down by the Apex Court in 1989 (1)
SCC 392 (State of Maharashtra versus
Jagannath Achyut Kartandikar) can not be
made to suffer adversely for the fault or
lapse on the part of the Government itself
as it would be unjust, unreasonable and
arbitrary. Since he was working on regular
basis on the post of Manager Marketing &
Economic Investigator and he must have
paid his post-retirement benefits of the said
post and can not be discriminated from
others in this regard particularly in the facts
and circumstances of the case. He has also
relied upon judgment dated 11.11.2010
passed
in
Special
Appeal
No.
1007
(Defective) of 2010 (Firangi Prasad versus
State of U.P.) referred to in the judgment
dated 14.2.2010 passed in Writ Petition No.
55050 of 2009 (Shashikala versus State)
and JT 1996 Vol. 4 731 in this regard.

Case Law Discussed:
1989(1)SCC 392; JT 1996 Vol. 6 SC Page 75;
JT 1992 Vol-3 SC 98; (2012) 8 SCC 117;
(2006)7 SCC 684; 1989(1) SCC 392; 1996 Vol.
6 SC Page 75.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. This petition has been preferred
for issuance of a writ of certiorari
quashing the impugned order dated
14.2.2002 passed by the respondents.
Petitioner also seeks a writ of mandamus
directing the respondents to pay the post
retirement benefits to him for the post of
Manager (M and E-I) in pursuance of the
orders dated 3.1.2001 and 8.8.2001
passed in Civil Misc. Writ Petition No.
3138 of 1982 and any other writ, order or
direction which may be deemed fit and
proper in the circumstances of the case. It