Allahabad High Court
Rahimun - Nisha vs State Of U.P. And 3 Others on 6 August, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD In Chamber RESERVED A.F.R. Case :- WRIT - A No. - 1337 of 2021 Petitioner :- Rahimun - Nisha Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sudheer Rana Counsel for Respondent :- C.S.C.,Rahul Pandey Hon'ble J.J. Munir,J.
1. The petitioner is the widow of a Class-IV employee, who superannuated from the services of the Nagar Palika Parishad, Bindki, District Fatehpur, as a Daftari on 05.01.1995. She has not been paid the post retiral benefits due on account of her husband's services, including family pension till date. This is the case that the petitioner has come up with before this Court, praying for the issue of a mandamus directing the respondents to sanction and disburse the post retiral benefits due on account of her husband's services.
2. Heard Mr. Sudheer Rana, learned Counsel for the petitioner, Mr. Rahul Pandey, learned Counsel appearing on behalf of respondent no.4 and Mr. Vimla Prasad, the learned Standing Counsel appearing on behalf of respondent nos. 1, 2 and 3.
3. According to the petitioner, her husband, Mubarak Hussain, retired as a Daftari, a Class-IV employee with the Nagar Palika Parishad, Bindki, District Fatehpur. He retired on 05.01.1995, and passed away within the course of a year, on 16.12.1995. His services were acknowledged by the Chairman, Nagar Palika Parishad, with the Palika, passing a condolence resolution showering encomiums. Still, the petitioner's post retiral benefits were not paid. The petitioner says that by the time she instituted the present writ petition, she had become a lean and impoverished woman of 81 years, looking forward to the payment of her husband's post retiral benefits, including the family pension.
4. There is a letter dated 12.01.1996 on record from the Commissioner, Allahabad Division, Allahabad addressed to the Collector, Fatehpur concerning the post retiral benefits due to the petitioner for her husband's services. This letter seems to have been written in ignorance of the factum of the employee's death, because it refers to pension payable to Mr. Mubarak Hussain, a retired Daftari. All that it says is that the required pension papers have not been forwarded by the Collector to the Commissioner, which should be made available. It is the petitioner's case that she has visited the office of the Nagar Palika Parishad time over again during all these many years and decades, but to no avail. It is also averred that the petitioner is dependent on the meagre income of her son, who is a married man and works as a labourer to earn his livelihood. It is averred in Paragraph No.19 of the writ petition that there are no dues outstanding against the petitioner's late husband payable to the employers, yet the petitioner is being denied her legitimate rights to pension etc. It is also pleaded that pension is not a bounty, as also the other post retiral benefits, which should come to her after her husband's demise. She has no source of livelihood and is on the verge of starvation.
5. There are two counter affidavits, carrying the respondents' substantial defence, that is to say, one on behalf of respondent no.3, the District Magistrate, Fatehpur and the other on behalf of respondent no.4, the Nagar Palika Parishad, Bindki, Fatehpur represented by its Executive Officer. The last affidavit is sworn by the Executive Officer of the Nagar Palika Parishad.
6. The stand taken in both the counter affidavits is almost identical. It is not denied that the petitioner's husband retired from the post of Daftari, but the date of his retirement is denied. The Nagar Palika Parishad say that he retired on 30.09.1994, whereas the petitioner says that it was 05.01.1995. That date may not be very material. The defence which the Nagar Palika Parishad have put forward, amongst others, in Paragraph No.8 of the counter affidavit, is that the petitioner's husband has worked 10 months exceeding the period of his service, on the basis of something described as "wrong papers". It is alleged that he has drawn salary for 10 months beyond his entitlement to work. As such, the Director, Sthaniya Nidhi Lekha Pariksha Vibhag, U.P., Allahabad vide Letter No. 2232 dated 04.01.1996 has raised an objection in this regard. The Pension Department, presumably of the Nagar Palika Parishad, required the petitioner's husband to remove the said objection, but it is said that he did not offer any evidence for the purpose.
7. It must be noticed here that the petitioner's husband, the late Mubarak Hussain, passed away on 16.12.1995. Apparently when the Pension Department, be it of the Nagar Palika Parishad or the Government, raised some kind of an objection, on account of the deceased employee serving 10 months more than his entitlement, he was not in the mortal world to answer or remove the said objection. The widow would have her own limitations in removing the objection, or as the respondents say, offering evidence to show that the deceased employee did not, in fact, work beyond his tenure. There is then a further stand taken in Paragraph No.16 of the counter affidavit filed on behalf of the District Magistrate, where it is said that Mubarak Hussain and the petitioner have not yet deposited the extra salary that the deceased employee has drawn for the 10 months of his services rendered beyond entitlement nor made an application to adjust the extra salary drawn.
8. The District Magistrate's stand in the counter affidavit filed on his behalf is also substantially the same. It is disconcerting to note, however, that while the Nagar Palika Parishad have blamed their employee for working 10 months beyond his entitlement and drawing extra salary without resolving the issue, the District Magistrate has been more insensitive and harsh in his rather contradictory stand, besides all that is common. On behalf of the District Magistrate, it has been averred in Paragraph No.8 of the counter affidavit that after the death of Mubarak Hussain, his wife has received extra payment on the basis of wrong papers. The relevant averments read:
"that after death of Sri Mubarak Hussain, his wife received extra payment on the basis of wrong papers, but thereafter she did not deposit the extra payment, regarding which pension department made objection. But, the genuine papers could not produce, did not cooperate to prepare the pension papers, and also did not produce papers pertaining to removal of objection of the pension department, but misbehaved with the employees of the Nagar Palika, due to which the pension paper could not be prepared as per rules, for which the carelessness and negligence of late Mubarak Hussain and his wife is showed."
9. The petitioner, in the rejoinder affidavit, has denied the stand taken by both the Nagar Palika Parishad and the District Magistrate and asserts that she has been denied her husband's post retiral benefits. It has particularly been emphasized in the rejoinder affidavit that the respondents have not annexed any evidence to show that they took any action, requiring the petitioner to undertake any formalities for the purpose of payment of pension and other post retiral benefits. The assertion that the petitioner did not cooperate, though the respondents tried to process the pension papers and the other post retiral benefits, is without the slightest evidence offered on behalf of the respondents. There is an averment in Paragraph No.10 of the rejoinder affidavit filed on behalf of the petitioner in answer to the District Magistrate's affidavit, that whenever she approached the competent Authorities, she was ill-treated and rebuked.
10. This Court has carefully perused the record and considered the submissions advanced at the Bar.
11. Besides the remarks about the stand taken by the respondents, that have figured earlier, it must be said that the respondents' stand is most unfair, unreasonable and arbitrary. The respondents do not deny the fact that the petitioner's husband retired from the Nagar Palika Parishad's employ. They do not deny the fact that he was a permanent employee, entitled to payment of post retiral benefits, including family pension payable to the petitioner. All that they say is that the petitioner's husband had worked 10 months more than his entitlement and drawn salary for that period, which is either required to be adjusted or deposited. The petitioner has not done that. The District Magistrate has gone a step ahead to say that it is the petitioner who has received extra payment on the basis of something called, "wrong papers". It is not known what the expression "wrong papers" mean. It is vague, illusory and mystifying. The petitioner admittedly has not been paid a single paisa towards her entitlement on account of her husband's services and yet the District Magistrate has taken a preposterous stand that the petitioner has received extra payment.
12. The Nagar Palika Parishad, on the other hand, say more logically that the petitioner's late husband worked 10 months beyond his entitlement and drew salary for those extra months. According to them, that is the impediment which is required to be removed in order to entitle the petitioner to her family pension and payment of all other post retiral benefits due to her late husband. If, in fact, the stand of the respondents is that the petitioner's husband worked beyond his entitlement and drew salary for that period, quite apart from the legal position about the liability to refund such emoluments, all that the respondents could have done was to deduct the said sum of money and pay the petitioner's post retiral benefits. Her family pension had to be sanctioned and disbursed. The mere fact that the respondents think that the petitioner's husband has drawn some extra emoluments, by working beyond his entitlement, would not entitle the respondents to indefinitely postpone the payment of the petitioner's family pension or the post retiral benefits due to her on account of her husband's services. It must be remarked here that the respondents' plea about the petitioner's husband working 10 months beyond his entitlement, is woefully vague. It has not been indicated by reference to specific dates as to what, according to the respondents, was Mubarak Hussain's date of superannuation and when he actually retired. It has also not been indicated as to how and under what circumstances he could work for the claimed extra 10 months. There is not the slightest description of facts and dates about all things claimed. The respondents are the establishment, who possess all service records. They could precisely indicate in their affidavits the precise manner in which the petitioner's late husband worked 10 months beyond entitlement. They could also show as to who was responsible for those extra 10 months of work that he rendered in the fourth respondent's employ. Not only are these particulars about dates and facts missing, there is not the slightest evidence to show that the petitioner's husband worked an extra 10 months. The respondents could have annexed the petitioner's husband's service-book and show when he actually retired; and how it was beyond his superannuation.
13. The respondents being the employers, surely, the petitioner's husband could not have continued unilaterally in service beyond the date of his superannuation. The rather unrefined expression "wrong papers" that both the District Magistrate as well as the Nagar Palika Parishad have employed in their affidavits, could be indicated with more specificity to show what incorrect document, if any, the petitioner's husband produced or used to continue those extra 10 months in the Nagar Palika Parishad's employment. Not a whisper has been said about the character of that document, or who produced it, and how the petitioner's deceased husband, a mere employee, utilized it to his advantage.
14. There is another aspect of the matter. Assuming that by some mistake or wrong entry of the date of birth of the petitioner's husband or by some other means, he continued in service for 10 months beyond the date of his superannuation, for which he received salary, the same cannot be recovered by the respondents or made the subject matter of adjustment. This is for the reason that the petitioner's husband, according to the respondents, drew salary for 10 months, but for work that he actually rendered. If the petitioner's husband rendered work for 10 months, recovery of emoluments paid for those extra 10 months of work, would amount to begar, which is prohibited under Article 23 of the Constitution. A Division Bench of this Court in Sushil Kumar Pandey v. State of U.P. and others, 2010 (5) ALJ 554 had occasion to consider this question in the context of a compassionate appointment, secured by the dependent of a deceased government servant, about whom it was revealed that he was temporary and terminated from service during his lifetime. The question was that notwithstanding the appointment secured by fraud being void, the 10 years' work that the appellant had rendered in terms of that void appointment, for which he was remunerated, would entitle the employers to recover the salary paid. In this context, it was held by their Lordships of the Division Bench in Sushil Kumar Pandey (supra):
"23. Therefore, upon the aforesaid discussions, we are of the view that the judgment of the learned Single Judge does not call for any interference. However, we have our reservation regarding the portion of the order by which the learned Single Judge has directed for recovery of salary that was paid to the appellant. Considering the facts and circumstances of the case, it is undeniably true that fraud has been played in obtaining the appointment by the appellant and it is also true that the said fraud would have remained undetected if the mother of the appellant had not applied for family pension. During this period more than 10 years had elapsed and the authorities continued to take work from the appellant and for the services rendered he was remunerated by salary. Now after 10 years of service as the appellant has been dismissed, in such a case, the recovery of entire salary from the person would be too severe for the acts and omission on his part but also the omission and negligence on the part of the authorities in granting appointment to the appellant, which in the facts of the case can not be ruled out. Even otherwise Article 23 of the Constitution of India prohibits taking of ''Begar'. The State-respondents having taken work from the appellant (Sushil Kumar Pandey) for more then 10 years before the fraud was detected, cannot be permitted to ask for refund of the entire salary paid to him as it would amount to taking of ''Begar' which the Constitution of India strictly prohibits."
15. The principle that for work done and remunerated the emoluments paid to a person, not at all lawfully appointed or lawfully entitled to serve, could not be recovered, was laid down in the extreme background of an abject fraud. Here, the 10 months of extra work beyond what the respondents claim could have been rendered by the petitioner's husband, is vague and nondescript. In this background, the principle that for work already rendered by an employee and remunerated by the employers, howsoever wrongly appointed or permitted to continue, cannot be recovered for that would be begar, applies with greater force.
16. It must be clarified that the principle prohibiting recovery of certain excess payment made to employees of certain classes or categories laid down in State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 and Thomas Daniel v. State of Kerala and others, 2022 SCC OnLine SC 536, is different from the one involved here to the understanding of this Court. In Rafiq Masih (supra) and Thomas Daniel (supra), the principle is about prohibiting recovery of emoluments paid in excess of entitlement to a certain class of employees, like those in Group-C and Group-D services or retired employees etc. made on account of a wrong calculation or reckoning of entitlement, to which the employee has not contributed. Here, the principle involved is about recovery of the emoluments paid to a person, who has either been retained without employment or permitted to continue in service beyond his entitlement or tenure. In this case, since the recovery is of the entire emoluments paid for the duration of work rendered, and not some part of the emoluments paid, the constitutional prohibition of begar is attracted. It needs hardly be emphasized that an employee, whose post retiral benefits, that include pension and gratuity are withheld on account of apathy at the hands of the employers, particularly, State employers, led the Supreme Court to observe in State of Kerala and others v. M. Padmanabhan Nair, (1985) 1 SCC 429, thus:
"1. Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.
2. Usually the delay occurs by reason of non-production of the L.P.C. (last pay certificate) and the N.L.C. (no liability certificate) from the concerned Departments but both these documents pertain to matters, records whereof would be with the concerned Government Departments. 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 month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement."
17. In a slightly different context about reckoning of the period of service prior to recruitment against a regular post, interpreting the service rules for the purpose of entitlement to pension, the Supreme Court in V. Sukumaran v. State of Kerala and another, (2020) 8 SCC 106 emphasized the nature and entitlement to pension thus:
"1. Pension is succour for post-retirement period. It is not a bounty payable at will, but a social welfare measure as a post-retirement entitlement to maintain the dignity of the employee. The appellant has been claiming his entitlement for the last almost 13 years but unsuccessfully, despite having worked with government departments in various capacities for about 32 years.
22. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind i.e. to facilitate a retired government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities."
18. The delay in disbursement of pension and gratuity, which would apply, in the opinion of this Court, to all post retiral benefits due to a retired employee or his surviving spouse, the Supreme Court in Gorakhpur University and others v. Dr. Shitla Prasad Nagendra and others, (2001) 6 SCC 591 held:
"5. We have carefully considered the submission on behalf of the respective parties before us. The earlier decision pertaining to this very University, reported in S.N. Mathur [(1996) 2 ESC 211 (All)] is that of a Division Bench, rendered after considering the principles laid down and also placing reliance upon the decisions of this Court reported in R. Kapur [(1994) 6 SCC 589 : 1995 SCC (L&S) 13 : (1994) 28 ATC 516] which, in turn, relied upon earlier decisions in State of Kerala v. M. Padmanabhan Nair [(1985) 1 SCC 429 : 1985 SCC (L&S) 278] and Som Prakash [(1981) 1 SCC 449 : 1981 SCC (L&S) 200 : AIR 1981 SC 212]. This Court has been repeatedly emphasizing the position 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. Withholding of quarters allotted, while in service, even after retirement without vacating the same has been viewed to be not a valid ground to withhold the disbursement of the terminal benefits. Such is the position with reference to amounts due towards provident fund, which is rendered immune from attachment and deduction or adjustment as against any other dues from the employee. ..........."
19. The authorities need not be multiplied which emphasize the importance of prompt settlement and quick disbursement of post retiral benefits, particularly, pension and gratuity. This would apply with equal, if not greater, vigour to the case of a surviving spouse/ widow of the deceased government servant/ employee, like the case here. The petitioner, as already noticed, is living in penury, though under the Rules, for her husband's services, she is entitled to monetary relief in terms of post retiral benefits. The respondents have resolutely delayed payment of post retiral benefits due to the petitioner on account of her husband's services.
20. In the circumstances, this Court is of opinion that the respondents must not only forthwith sanction, release and disburse all post retiral benefits due to the petitioner on account of her deceased husband's services, but also compensate the petitioner in costs and by payment of adequate interest on the delayed disbursement of post retiral benefits. It is made clear that there shall be no deduction or adjustment out of the post retiral benefits payable to the petitioner on account of her husband's services, on ground that her husband worked for some months beyond the age of superannuation.
21. In the result, this petition succeeds and is allowed. A mandamus is issued to the Commissioner, Prayagraj Division, Prayagraj, the District Magistrate, Fatehpur and the Nagar Palika Parishad, Bindki, Fatehpur represented by its Executive Officer to ensure between themselves sanction and disbursement of the petitioner's post retiral benefits, including retirement pension, if any, family pension, gratuity, general provident fund, group insurance, besides any other dues under the rules within six weeks of the date of receipt of a copy of this order. The dues shall be remitted in such bank account to the petitioner as she would indicate, upon the District Magistrate, Fatehpur ascertaining the relevant particulars from her or a family member of hers in her presence, within the aforesaid period of time. The substantive entitlement of the petitioner under various heads of post-retiral benefits shall carry simple interest at the rate of 6% per annum from the date of entitlement till payment in the petitioner's account. The petitioner's family's pension, current as well as future, shall be paid regularly. The petitioner shall be entitled to cost of Rs. 25,000/-, which shall be paid by the respondent, Nagar Palika Parishad, Bindki, District Fatehpur separately through a bank instrument, payable in account to the petitioner. In the event of default in payment of costs, upon an application for the purpose made to the Registrar General of this Court, the Registrar General shall cause the costs to be recovered from the Nagar Palika Parishad as arrears of land revenue through the District Magistrate, Fatehpur and remitted in account to the petitioner.
22. Let a copy of this judgment be communicated to the Commissioner, Prayagraj Division, Prayagraj, the District Magistrate, Fatehpur and the Executive Officer, Nagar Palika Parishad, Bindki, Fatehpur by the Registrar (Compliance).
Order Date :- 6.8.2022 Anoop