Allahabad High Court
Ramadhar Pandey Son Of Shri Ram Kuber ... vs State Of U.P. Through Its Secretary ... on 24 October, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. Heard Dr. L.A. Siddiqui, learned Counsel for the petitioner and learned Standing Counsel for respondents No. 1 to 3.
2. Aggrieved by the orders dated 28.1.2004 and 13.1.2004 passed by the respondents No. 3 and 2, respectively, the petitioner has filed this writ petition seeking a writ of certiorari for quashing the same and also has sought a writ of mandamus commanding the respondents to refund Rs. 25000/-. amount of gratuity, withheld, along with interest at the rate of 12% per annum.
3. It is not disputed that during the pendency of the writ petition the respondents have paid a sum of Rs. 19185/- to the petitioner towards alleged withheld gratuity after deducting Rs. 5815/-, pursuant to the two orders which are impugned in this writ petition.
4. Learned Counsel for the petitioner contended that the aforesaid deduction is wholly illegal and unauthorised, inasmuch as he has not taken any loan and yet amount of Rs. 5815/- has been deducted from his gratuity illegally. He has also placed reliance on a Single Judge judgment of this Court in Radhey Shyam Dixit v. State of U.P. and Ors. 2006 (5) A.D.J. 720.
5. However, I do not find any force in the submission for the reason that it is evident from record that an inquiry was conducted by the office of Finance and Accountants, Regional Audit Cell IV Region. Allahabad wherein it was found that a sum of Rs. 5015/- was taken by the petitioner from the College Library Fund which was payable along with interest and. therefore, he has to pay a sum of Rs. 5815/- to the College Library Fund. Accordingly, the petitioner was issued notice for depositing the said amount. The petitioner having failed to deposit the same, the said amount was deducted from his gratuity amount and balance amount of Rs. 19185/- has been paid to him. The judgment cited by learned Counsel for the petitioner does not help him for the reason that in the entire writ petition there is no averment whatsoever that the amount of Rs. 5815/- has been deducted from his gratuity without conducting any inquiry whatsoever against the petitioner. On the contrary, it is evident from the record that the Special Audit Cell conducted inquiry and submitted its report whereafter the petitioner was communicated the said report and he also submitted reply thereto. In the circumstances apparent, I do not find any invalidity in deduction of Rs. 5815/- from the gratuity amount of petitioner and to that extent no relief can be granted to the petitioner.
6. Since during the pendency of the matter, rest of the amount Rs. 19185/- has already been paid to the petitioner, the only question require to be considered is whether the petitioner is entitled for any interest on the delayed payment of Rs. 19185/-.
7. Pursuant to the order dated 27.11.2006 passed by this Court a supplementary counter affidavit sworn by Sri G.B. Ram. Treasury Officer. Collectorate, Allahabad has been filed wherein he has admitted that the letter dated 4.5.2005 sent by Deputy Director of Education. IV Region, Allahabad was received in his office on 9.5.2005 but it was not attended and only when the information regarding the present writ petition was received in his office thereafter the matter was examined and payment was made to the petitioner vide Cheque No. BIO51003 vide order dated 16.10.2006. The averments contained in paras 4 and 5 of the supplementary counter affidavit of the Treasury Officer are being reproduced as under:
4. That the letter dated 4.5.2005 was sent to the office of deponent through special messenger by the Deputy Director of Education, IVth Region, Allahabad, received by the office on 9.5.2005 by which payment of Rs. 19,185/- as gratuity amount to the petitioner, was made available.
5. That it is relevant to point out here that the above mentioned letter dated 4.5.2005, though it was received by the Office Clerk concern on 9.5.2005 and then entry was made in the dispatch register also on the same day but on account of shifting/placement of the different Clerks to the different seats/tables, the aforesaid letter somehow misplaced and the same could not be further put up for necessary action upon the aforesaid letter by the respective official Clerk before the Officer responsible for the same and as such it was lying unattended in the office of the deponent. However, the moment in this regard the petitioner (pensioner) has contacted to the office of the deponent with regard to his payment in pursuance of order passed by this Court on 14.9.2006 through application/letter dated 12.9.2006 addressed to the Chief Treasury Officer, Allahabad, the aforementioned application submitted by the petitioner, was traced out by the office of the deponent and immediately the deponent came into action. Since under the rule, the gratuity authority was to be paid within one year as such it recjiiired its renewal as such in the circumstances, at law instance of deponent it has got renewed by the proper authority only on 12/13.10.2006, and the respective payment has been made to the petitioner (pensioner) through cheque No. BIO51003, vide order dated 16.10.2006 of the deponent. For kind perusal of this Hon'ble Court, a photostat copy of the letter with the endorsement of order dated 16.10.2006 with regard to payment by the Treasury Officer, is being fled herewith and marked as Annexure No. 1 to this affidavit.
8. From the averments it is clear that the matter of payment of gratmiv of a retired employee has been dealt with in a most reckless manner with utter negligence and irresponsibility. Even after noticing the said negligence and irregularity, the authorities, and, in particular the respondent No. 5 has not taken any action against the alleged erring official/clerk who according to him were guilty of laches and did not bring the said letter dated 4.5.200. of Deputy Director of Education, IV Region. Allahabad to his notice which ultimately resulted in delayed payment of gratuity amount to the petitioner. The laxity on the part of the respondent No. 5 is evident and writ large. The same can neither be sanctioned nor countenanced nor permissible. Deprecating such conduct/attitude on the part of the public functionaries, this Court, in Civil Misc. Writ Petition No. 35807 of 2004 Virendra Prakash Verma v. State of U.P. and Ors. decided on 3.4.2007 has observed as under:
It is no doubt true that an employer for just and valid reasons and in exercise of power vested in it can defer or deny pension and other retiral benefits to an employee provided the action of the employer is in accordance with the procedure prescribed in law and such a power also emanates from statute or the relevant provisions having force of law. In our system, the Constitution being supreme, yet the real power vest in the people of India since 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 ex-employee who has served for a long time and has earned certain benefits under the rules recoverable after attaining the age of superannuation. Pension and retiral benefits are not bountee but right of an employee crystallized in deferred wages to which he is entitled under the rules after retirement and non payment thereof is clearly violative of Article 21 of the Constitution of India. Therefore, it becomes more important for the public functionaries and the authorities to act with better sense of responsibility so that their ex-employee may not be subject to Iwrassment at the old age when they have already retired and have to survive and maintain themselves and their family with the meagre amount payable in the form of retiral benefits.
The respondents being a Government Company wholly owned by the State of U.P. is "State" under Article 12 of the Constitution of India and its officers are public functionaries. As observed under our Constitution, sovereignty vest in the people. Every limb of the 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 the 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 the entire machinery and the various powers of the statute and an ordinary citizen or a common man is hardly equipped to match such might of the 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 the inaction in public oriented departments gels 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 the occasion otherwise the confidence of the common man would shake. It is the responsibility of the Court in such matters to immediately rescue such common man so that he may have the confidence that he is not helpless hut a bigger authority is there to take care of him and to restrain the arbitrary and arrogant unlawful inaction or illegal exercise of power on the part of the public functionaries.
9. In view of the aforesaid discussion, this Court is constrained to hold the respondent No. 5 guilty of serious negligence and irregularity causing undue delay in payment of amount of gratuity to the petitioner for which, in my view, the petitioner is entitled for interest at the rate of 10% per annum.
10. In the result, the writ petition is partly allowed. The petitioner shall be entitled for interest at the rate of 10% per annum on the late payment of gratuity amount and the same shall be paid within a period of two months from the date of production of certified copy of this order before the respondent No. 5.
11. The State Government shall however, be at liberty to initiate disciplinary action for fixing responsibility of such negligence and loss caused to the Government towards payment of interest due to undue delay on the part of the respondent No. 5 and take appropriate action against such erring officer including recovery of the amount of interest from such officer which is paid to the petitioner under this order. No costs.