# Waqf, U.P. Lucknow & Ors v. Gopal Singh

- **Citation:** (2011) 1 ILRA 188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-22
- **Case number:** Civil Misc. Writ Petition No. 22315 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waqf-u-p-lucknow-ors-v-gopal-singh-41833
- **Pages:** 13

## Headnote

Constitution of India, Article 21-Delay in
payment
of
gratuity
and
pensionpetitioner
bearing
pensionable
post
retired on 31.07.2005-inspite of circular
dated 28.10.2006-No action taken-heldwithholding pension and other retiral
benefits for years together-not only
arbitrary and illegal but a sin if not
offence-considering
extraordinary-and
unexplained delay-exumpting cost of
two
Lacs
imposed-recoverable
from
personal benefits of erring officer-entire
amount be paid with 12% interest-detail
time schedule given.

Held: Para 36

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
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.
Case law discussed:
OOS No. 4 of 1989 (Sunni Central Board of
Waqf, U.P. Lucknow & Ors. Vs. Gopal Singh
Visharad & Ors.); 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; (Writ Petition No. 34804 of
2004); 1985 (1) SLR-750

## Text

_Characters 0–39,755 of 42,014. This is a partial read: ask again with offset=39755 for what follows._

188 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the question, therefore, exercise of powers
of substantive review would not arise.

7. For the reasons stated above, the
application is not maintainable. It is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 22315 of 2008

Abdul Kuddus Khan

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

Counsel for the Petititoner:
Sri Mirza Ali Zulfaquar
Sri Ikram Ahmad

Counsel for the Respondents:
Sri Ajay Singh
Sri Dhananjay Singh
C.S.C.

Constitution of India, Article 21-Delay in
payment
of
gratuity
and
pensionpetitioner
bearing
pensionable
post
retired on 31.07.2005-inspite of circular
dated 28.10.2006-No action taken-heldwithholding pension and other retiral
benefits for years together-not only
arbitrary and illegal but a sin if not
offence-considering
extraordinary-and
unexplained delay-exumpting cost of
two
Lacs
imposed-recoverable
from
personal benefits of erring officer-entire
amount be paid with 12% interest-detail
time schedule given.

Held: Para 36

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
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.
Case law discussed:
OOS No. 4 of 1989 (Sunni Central Board of
Waqf, U.P. Lucknow & Ors. Vs. Gopal Singh
Visharad & Ors.); 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; (Writ Petition No. 34804 of
2004); 1985 (1) SLR-750

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

1. Heard Sri Mirza Ali Zulfaquar,
Advocate for petitioner, learned Standing
Counsel for respondent No.1, Sri Ajay
Singh, Advocate for respondents No.2, 3
and 4 and Sri Dhananjay Awasthi,
Advocate for respondent No.5. With the
consent of learned counsel for the parties,
this writ petition is being decided finally
under the Rules of the Court at this stage.

2. The perennial complaint of
harassment of a retired employee on
account of non payment of his retiral dues
is again a cause of action in this writ
petition. Time and again, this Court has
expressed its concern and many a time
has taken serious view, imposing penal
interest and exemplary cost on the
1 All] Abdul Kuddus Khan V. State of U.P. others
189
employer
and
other
authorities
responsible for delay in payment of retiral
dues which is a fundamental right of
employee concerned within the purview
of Article 21 of the Constitution, yet has
not
resulted
in
improvement.
The
employer
and
other
authorities,
responsible
for
such
payment,
are
unabatedly going on causing a constant
harassment to the poor retired employees
taking advantage of their helplessness.
This is really unfortunate and shameful.

3. The petitioner, in this case, a
Class III employee was initially appointed
as Booking Clerk in the erstwhile U.P.
Transport in 1971 and was promoted to
the post of Office Assistant in 1978. The
post of Office Assistant Grade-II is a
pensionable post. The petitioner after
attaining the age of superannuation retired
from the post of Office Assistant Grade-I
on 31st July, 2005 when he last performed
his duties in the office of Asst.Regional
Manager, U.P. State Road Corporation,
Basti i.e. respondent No.4 (hereinafter
referred to as "Corporation"). Despite the
fact that petitioner services as Office
Assistant Grade-II was pensionable yet
Corporation did not take any step for
payment of pension. Lately, on 28th
October, 2006 a departmental circular was
issued under the signature of Finance
Controller of Corporation informing all
concerned authorities in the Corporation
that vide Government Order dated 20th
October, 2004, pension has been allowed
to all employees under the Government
Rules for employees who were engaged
between 01.6.1972 to 19th June, 1981.
Besides,
the
employees
holding
pensionable service/post were to return
employer's
contribution
after
while
exercising option, therefore, Regional
Commissioner (Pension) proposed that
the employees' contribution as well as the
employer's contribution towards provident
fund be deposited in the Corporation's
accounts.

4. The petitioner submitted his
requisite documents along with option in
the
office
of
Provident
Fund
Commissioner on 30th August, 2005. All
other
concerned
documents
were
submitted in the office of Corporation.
The respondent No.5 however sent
employees' contribution through cheque
in September, 2005 but employer's
contribution remain unpaid as a result
whereof
pension
was
not
paid.
Accordingly,
the
petitioner
sent
a
representation dated 1st June, 2006 to
respondent No.5 requesting him to furnish
employer's contribution to Corporation at
the earliest so that he may get his pension.

5. The employees' contribution to
the tune of Rs.3,55,000/- was paid to the
petitioner
but
since
the
employer's
contribution
was
not
received
by
Corporation, the petitioner could not get
his pension. In this regard, he sent a
representation dated 15.12.2007 to the
Corporation also. Reminders also sent on
29th February, 2008, and, 30th March,
2008 and thereafter this writ petition was
filed.

6. While entertaining writ petition
on 6th May, 2008 this Court permitted the
petitioner to implead respondent No.5 and
passed the following order:

"Petitioner is permitted to implead
Assistant Provident Fund Commissioner,
Gorakhpur as respondent no.5.

The petitioner retired from the post
of Office Assistant Grade - I from the
190 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
office of the Assistant Regional Manager,
U.P. State Road Transport Corporation,
Basti, respondent no.4 on 31.7.2005. His
grievance is that he is not being paid his
post retiral dues and pension.

Sri Ajay Singh who has put in
appearance on behalf of respondent no.2
to 4 wants to seek instruction in the
matter. On his request, put up on
12.5.2008."

7. Thereafter the matter came up on
12th May, 2008 and the Court passed the
following order:

"Petitioner retired on 31.7.2005 from
the post of Office Assistant Grade-I. The
dispute in the present writ petition is with
regard to non payment of provident fund
and the pension.

Sri Ajay Singh learned counsel
appearing for the respondents No.2, 3 and
4 states that the relevant papers for the
release of petitioner's provident fund have
already been submitted to the respondent
No.5 and as soon as the instructions and
funds are received from his office, the
pension of the petitioner shall be
released. The delay is only on the part of
respondent No.5.

Learned Standing counsel appearing
for respondents No. 1 and 5 and Sri Ajay
Singh learned counsel appearing for
respondents No. 2,3 and 4 pray for and
are allowed a month's time to file counter
affidavit. Two weeks thereafter are
allowed to the petitioner to file rejoinder
affidavit.

List for admission/final disposal in
the third week of July 2008."

8. Nothing transpired hence, on 21st
July, 2008, the Court has to pass the
following order:

"In spite of time being granted to the
learned Standing Counsel on 12.5.2008,
he has not filed any counter affidavit on
behalf of respondent No.5. It has been
contended that Sri Ajay Singh learned
counsel
appearing
on
behalf
of
respondents 2,3 and 4, has sent various
letters to respondent No.5 for release of
the Employees Contribution Fund but no
reply has been received from the
respondent No.5, the details of which are
given in Para-5 of counter affidavit.

Respondent No.5 is directed to pay
the Employees Provident Fund to the
petitioner within one month or file his
counter affidavit and show cause within
the same time. If no counter affidavit is
filed within the aforesaid time or if
payment is not made, the respondent No.5
shall appear in person on the next date
fixed."

9. Thereafter when the matter came
up on 19th January, 2011, the Court found
that
respondent
No.5
has
neither
responded nor represented, hence nonbailable warrant was issued. Ultimately,
respondent No.5 appeared, filed his
affidavit and informed that no notice was
served upon him hence he could not
respond.

10. From the affidavit of respondent
No.5 it transpired that Rs.70,560/- vide
cheque No.772758/- dated 30th June,
2008 and Rs.1,06,339/- vide cheque
no.64747 dated 27th November, 2009
were forwarded to Regional Manager of
the Corporation, Gorakhpur. Out of the
aforesaid two amounts Rs.70,560/- was
1 All] Abdul Kuddus Khan V. State of U.P. others
191
shown
as
Benefit
Amount
and
Rs.1,06,339/- was shown as employer's
contribution.
Thereafter
this
Court
directed respondents No.2, 3 and 4 to file
a proper affidavit to show, when the
amount relegated by respondent No.5 in
2008 and 2009 was received, why upto
January, 2011 pension/retiral benefits
were not paid and in what circumstances
such delay occurred.

11. A supplementary counter
affidavit has been filed today sworn by
Sri Ram Briksh, Regional Manager of
Corporation at Gorakhpur. It is said,
several letters sent by Corporation to
respondent
No.5
for
release
and
finalization of employer's contribution.
These letters are dated 23rd November,
2005, 06th March, 2006, 07th June, 2006,
11th August, 2006, 2nd November 2006,
20th January, 2007, 25th April, 2007, 05th
July, 2005, 28th September, 2007, 22nd
April, 2008 and 13th May, 2008.
Respondents No.2 to 4 also refer to some
subsequent letters dated 3rd September,
2008, 17th October, 2008, 26th July,
2008,
26th
November,
2008,
5th
December, 2009, 8th February, 2010 and
9th April, 2010. It is however admitted
that sum of Rs.70,560/- and Rs.1,06,339/-
were received and credited in the account
of respondents No.2 to 4 on 11th July,
2008 and 7th January, 2010. However, no
details were given by respondent No.5
along
with
these
cheques
about
employer's contribution or pensionary
contribution. It is also said that under the
Rules without receiving Form-K, which
contains certain information, it was not
possible for Corporation's Head Quarter
to sanction pension. A format of Form K
is placed on record (Annexure-3 to the
supplementary counter affidavit). Form K
information is said to have been received
from respondent No.5 on 17th February,
2011. However, in the meantime, on the
basis of documents placed on record by
respondent No.5 vide his reply filed
before this Court, respondent No.3
forwarded requisite papers to Headquarter
on 16th February, 2011. It is said that
pension and gratuity has now been
sanctioned by Headquarter on 19th
February, 2011 and arrears of pension
will be released shortly. It could not be
calculated for want of Form-K duly filled
in by respondent No.5.

12.

The
entire
defence
of
respondents No.2 to 4 therefore is
founded on non-availability of duly filled
in Form K from the office of respondent
No.5 which they claim was a statutory
requirement and without this form,
pension and gratuity etc. could not have
been paid to the petitioner. This Court
made a specific query to Sri Ajay Singh,
learned Counsel for respondents No.2 to 4
as to which rule refers to preparation of
Form-K and its submission by respondent
no.5 without which pension or gratuity of
an employee shall not be paid. The reply
given by Sri Ajay Singh, counsel for
Corporation in his own words has been
noticed by this Court and is reproduced as
under:

Counsel: I am sorry My Lord. There
is no any rule.

Court: Under which provision Form -
K is necessary?

Counsel: No such provision in the
Act.

Court: Under which provision FormK is issued? You know or don't know.
192 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Counsel: I don't know.

Court: Under which law it is issued?

Counsel: Very shortly I would give
reply.

13. However no further details could
be given. This Court required Sri Ajay
Singh to show as to what information is
required to be given by respondent No.5
in Form-K which the Corporation itself
did
not
possess.
The
details
of
contribution whether that of employer or
employee are available in the account of
the Corporation, the service details of the
employees concerned is also there and
hence what is that peculiar information
which the Corporation did not possess and
could have gathered only after getting
Form-K was the anxiety of the Court but
Sri Singh could not point out any such
thing. He said repeatedly said that without
Form-K, duly filled in by respondent
No.5, no responsibility lie on respondents
No.2 to 4 to pay pension and gratuity but
neither could lay his hand to any rule
providing for furnishing of Form-K and
authorising the employer i.e. Corporation
to pay retiral benefits to the employees
unless such form is received nor could
show that there was any information
given in Form K which otherwise was not
in
the
record
and
knowledge
of
respondent No.2 to 4 and in absence of
such information, retiral benefits could
not have been paid.

14. Apparently, therefore, delay in
payment of pension and gratuity to the
petitioner by Corporation is without any
authority of law. It has caused only due to
their own conjunctures and surmises and
for non statutory alleged practice and
bottleneck created thereby. This kind of
practice perhaps observed to harass a poor
retired employee. In the absence of any
other valid reason shown by learned
counsel for the Corporation, this Court is
justified to infer as above. Such approach
cannot be approved or condoned but
deserve to be castigated and condemned
in the strongest words.

15. The learned counsel for the
respondents-Corporation refers to an
internal circular dated 27th June, 2008
issued by Finance Controller which says
that matters of pension and other retiral
benefits of employees must be attended
expeditiously and should be disposed of
speedily, but, simultaneously due care be
observed to avoid any loss to the
Corporation. If therefore required that
following information may be verified:

^^1- deZpkjh Hkfo"; fuf/k ls izFke lnL;rk
xzg.k djus dk fnukadA

2- lsok fuo`Rr ds iwoZ ds leLr [kkrksa dk
,dhdj.k djus ds mijkUr deZpkjh rFkk fu;ksDrk
va'knku ds en esa tek /kujkf'k dk fooj.kA

3-
D;k
deZpkjh
bZ0ih0,Q0
ds
isa'ku@ikfjokfjd isa'ku dk lnL; FkkA ;fn gkWa rks
isa'ku Q.M esa tek /kujkf'k foHkkx dks okil dh
x;h vFkok ugha rFkk fdruhA

4- D;k bZ0ih0,Q0 dk;kZy; }kjk deZpkjh dks
isa'ku@ikfjokfjd isa'ku Lohd`r vFkok Hkqxrku dh
x;h gS vFkok ughaA ;fn gkWa rks fdruhA

5- D;k deZpkjh dks fu;ksDrk va'knku esa ls
dksbZ vfxze fn;k x;k gS ;fn gkWa rks fdl frfFk esaA

6- mDr ds vfrfjDr ftu dkfeZdksa ds izdj.k
esa isa'kujh va'knku foHkkx dks muds isa'ku izi=
vxzlkj.k djus dh frfFk rd okil ugha izkIr gqvk
gS rks muls 'kiFk i= ysdj vfuok;Z :i ls izi= ds
lkFk layXu djsaA**
1 All] Abdul Kuddus Khan V. State of U.P. others
193

16. This letter of the Finance
Controller is in the nature of precautions
needed to be observed by officers of
Corporation while dealing with the
matters of retiral benefits of an employee
so that anything not due to employee, may
not
be
paid
causing
loss
to
the
Corporation.

17. But this kind of precautionary
steps cannot be allowed to be a tool in
hand creating embargo or a cloak for not
paying retiral benefits to an employee for
several years. The apprehension of a
possible loss to Corporation, no doubt
must be given due care by officials in
discharge of their duties in a bona fide
manner but simultaneously it cannot be
extended of denying what is due in law or
otherwise to an employee for years to
come. If this stand of Corporation is
accepted, it would result in giving a
license to officials of Corporation to make
retired employees run here and there for
decades
without
there
being
any
corresponding
obligation
on
the
Corporation to compensate employees for
such harassment. Whatever precaution
need be observed as provided in the
alleged circular dated 2th June, 2008,
therein the retired employee had no role
to play. Therefore something over which
a retired employee has no role or control,
cannot be allowed to be a handy pretext or
justification to withhold retiral benefits to
an employee which is his right in law as
well as in the Constitution.

18. 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.

19. Besides above, it is also evident
from record that from December, 2005
when petitioner submitted his option and
completed other documents; till 30th
June, 2008 and 27th November, 2009, the
respondent No.5 also did not pay
employers contribution etc.. This delay on
the part of respondent No.5 is also
unexplained in the counter affidavit of
respondent No.5. Whatever thus observed
above for respondents No.2 to 4 above
equally apply to respondent No.5 also.

20. 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
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
194 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
by which time he may die of hunger or
the foodstuff itself may rot. If this is not
unconstitutional then what else can be.

21. Moreso, when this matter remain
pending for more than two years before
this Court, yet respondents did not woke
up to meet grievance of petitioner. The
pain and torture faced by retired employee
and his family, in such circumstances, can
be easily visualised and felt but cannot be
assessed in the same way only those who
really suffer, know it. This pain and
humiliation cannot be compensated in
terms of money.

22. Respondents No.2 to 5, in their
own way, obviously moved with snail
pace adding to the misery of a retired
Class III employee without realising how
a poor employee and his family would be
meeting their two times meal and other
necessities during these days of high price
escalation when even full salary paid to
employees find it difficult to meet
his/their
necessities.
The
petitioner
probably
could
not
resort
to
the
underhand facility procedure to get his
matter expedited and that is how he had to
suffer in silence. Instead of resorting to an
illegal act which it could have expedited
his matter, in his wisdom decided to avail
constitutional remedy of judicial review
but here also the matter remain pending
for almost three years. The petitioner's
agony continued on account of repeated
adjournments obtained by respondents in
responding, which this Court readily
permitted. That is how the misfortune of
the petitioner continued all through.

23. I am constrained to observe that
time
has
come
now
when
long
adjournments should not be frequently
and easily be granted. Response of
official respondents must to come within
a short time. The Court cannot have the
luxury of giving several weeks and
months' time seeking response where
extra
ordinary
equitable
speedy
jurisdiction under Article 226 has been
invoked by a harassed pinnacle. Half a
century ago, time of more than a week to
other side for placing its response might
have been necessary since system of
communication was not so fast. The
people also did not have better facilities
of travelling and conveyance but now,
particularly in the last more than two
decades, the situation has gone a sea
change. We can communicate across the
world within no time. The Government
machinery has already consumed a hefty
sum from valuable public money in
modernising its system of communication
etc.. It is inconceivable that a person in
the farthest place in the State may not be
informed to respond to the Court within a
few hours. In order to prepare the case
and study record, one may understand of
giving a few more days but it is
inconceivable that time of weeks and
months together be allowed to pass
awaiting
reply
of
respondents;
in
particular where State Government, its
officials and instrumentalities are party. If
Government's officials are willing and
ready to respond to Court cases, they can
file their response within a week or even
less. Probably, it is the lethargic old
system still prevailing in the minds of
Government Officials in regard to Court
cases, and, that is how, months and years
pass but they fail to respond causing extra
ordinary delay in disposal of Court cases.

24. Not only this Court but all the
Courts throughout the country are reeling
under the pressure of mounting arrears. A
lot of hue and cry here and there is going
1 All] Abdul Kuddus Khan V. State of U.P. others
195
on
about
extra
ordinary
delay
in
dispensation of justice by the Courts of
law but one has to be realistic to
appreciate the real problem. It lies on the
part of Executive in showing response to
pending
cases.
Despite
receiving
information, for one or the other reason,
and mostly without any reason, they
continue to ignore showing attitude of non
response and that is how the cases are
piling up. Small matters, which may be
decided then and there, if stand of the
Government is immediately informed to
Court also remain undisposed of for this
very reason. When some Courts, after
awaiting for a reasonable time, try to
decide
the
matters
without
further
awaiting for reply, the Government and
its authorities raise a hue and cry that
without giving opportunity of hearing for
reasonable time, cases are being decided
ex parte. In their understanding, probably
the term "reasonable opportunity" means
indefinite period. This Court finds it an
opportune
moment
to
refer
some
observation made in the majority order
dated 17.09.2010 of Full Bench in OOS
No.4 of 1989 (Sunni Central Board of
Waqf, U.P. Lucknow & Ors. Vs. Gopal
Singh Visharad & Ors.) where the Court
observed:

"14. ......... Is it what we have to
deliver to our future generation that the
courts of law in India are not capable to
decide cases for generations and on a
mere drop of a hat, an excuse is found to
defer the matter or adjourn the case? Are
we here to find out ways and means of
deferring
adjudication
or
to
make
adjudication? No case, no dispute and no
apprehension can be above the honest
discharge of constitutional function by an
independent judiciary. The people of
India
are
already
having
serious
complaints in abundance in recent past
against the judicial system of this country
that it keeps the matter lingering on for
generations and attempt to decide cases is
minimal.

15. With the increased awareness,
the people are getting conscious of their
right and do not hesitate in asserting it. If
the enforcement of rights get deferred not
because of any slackness on their part,
but due to extremely slow pace or
inaction on the part of judiciary, their
complaint cannot be levelled frivolous. In
a system of good governance, effective,
independent judicial system is not only the
requirement but the real crux lies whether
it can deliver justice within reasonable
time; whether it can decide the issue
expeditiously and before the patience of
the people exhausts? These are some of
the aspects which need be seriously taken
up by the Bench and Bar both. This is the
high time when not only the Presiding
Officers of the Court but also the
members of the Bar who are also officers
of the Court should ponder over seriously
and find out the way in which cases may
be decided expeditiously instead of
inventing the way for their deferment and
adjournments. The courts are meant for
adjudication and not for adjournments or
deferment."

25. 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 five years
delay
is
wholly
unreasonable.
The
petitioner, a retired employee, had no role
whatsoever except of suffering the cause.

26. As already said, pension is not a
bounty but a right of employee who has
196 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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 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)

27. 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 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.

28. 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.
1 All] Abdul Kuddus Khan V. State of U.P. others
197

29. 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)

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

31. 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 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 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,
198 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
unlawful inaction or illegal exercise of
power
on
the
part
of
the
public
functionaries.

32. 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.

33. 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".

34. 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."

35

.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."

36. 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 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.

37. 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
1 All] Abdul Kuddus Khan V. State of U.P. others
199
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."

38. 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.

39. In the above facts and
circumstances, the writ petition is allowed
with the following directions:

(1) The entire amount of arrears of
pension shall be paid to petitioner within
one month from the date of production of a
certified copy of this order before the
authorities concerned. The current pension
shall be paid as and when due.

(2) The petitioner shall be entitled to
interest on delayed payment of pension and
gratuity @ 12%.

(3) Liability of payment of interest is
divided on respondents No.2 to 5 in the
following manner:

(i) The respondent No.5 shall pay
interest on the amount of pension and
gratuity including arrears by paying
interest upto 27th November, 2009.

(ii) For period subsequent to 27th
November, 2009, interest on the amount of
pension and gratuity including arrears shall
be paid by respondents no.2 to 4.

(4) For sheer carelessness, negligence
and inaction on the part of respondents
causing delay and also for misleading this
Court in one or the other way, this is a fit
case where exemplary cost should be
awarded. I quantify the cost to Rs.2 lakhs
to be shared 50% by respondents No.2 to
4; and 50% by respondent No.5. It shall be
paid to petitioner along with arrears of
pension.
200 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(5) Respondent No.1 however shall
be at liberty to recover the amount of
interest and cost paid to petitioner under
this order from the official(s) concerned,
who is/are found responsible for extra
ordinary delay in payment of retiral
benefits to the petitioner, after such inquiry
as is required in law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 22624 of 1993

Prem Chandra and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri K.K. Misra
Sri Prabhakar Singh
Sri Puneet Khare

Counsel for the Respondents:
C.S.C.