Allahabad High Court
Daya Shanker Tiwari Son Of Ganesh Prasad ... vs The State Of U.P. Through Secretary Of ... on 20 March, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. Heard Sri A.N. Bhargava, learned Counsel for the petitioner, learned Standing Counsel for the respondent Nos. 1, 2 and 3 and Sri Satish Chaturvedi, learned Counsel appearing for respondent No. 4.
2. In short the grievance of the petitioner is that he retired from the post of Boring Mechanic in the year 1999 from the department of Minor Irrigation, State of U.P. However his outstanding dues of General Provident Fund (in short 'G.P.F.') has not been paid by the respondents despite several representations and therefore present writ petition has been filed.
3. The respondent Nos. 1 and 3 have filed a counter affidavit annexing copy of the letter dated 23.3.2004 stating that 90% amount of G.P.F. has been paid to the petitioner. The 10% amount of G.P.F. could not have been paid since authorization from the office of Accountant General has not been received though letter was already sent on 23.3.2004 and as soon as the said authorization is received, rest of the amount shall also be paid to the petitioner.
4. Sri Bhargava, learned Counsel for the petitioner did not dispute the correctness of the aforesaid statement that 90% amount of G.P.F. has been paid to the petitioner. However, he submits that rest 10% amount G.P.F. which is lying with the respondents has not been paid till date without any lawful reason.
5. The Accountant General, U.P. Allahabad, impleaded as respondent No. 4, has also filed a counter affidavit stating that 90% amount of G.P.F. is to be paid by the Drawing and Disbursing Officer and after payment thereof the sanctioning authority shall forward the case to the office of the Accountant General alongwith necessary papers for authorization of residual 10% amount of G.P.F. It is further stated that probably 90% amount of G.P.F. has not been paid by the Drawing and Disbursing Officer though it has been asked to make the said payment vide respondent No. 4's letter dated 13.4.2004, a copy whereof has been filed as Annexure-1 to the counter affidavit.
6. The dispute is thus confined only to payment of 10% residual amount of G.P.F. As per the respondent Nos. 1, 2 and 3 the same could not have been paid on account of non receipt of authorization from the office of the Accountant General, U.P., Allahabad. The defence of the respondent No. 4 is that even 90% amount of G.P.F. appears to have not been paid by the Drawing and Disbursing Officer and they have not sought any authorization from the respondent No. 4. From the record, on the contrary, it appears that the Chief Engineer, Minor Irrigation, U.P. while disbursing 90% amount of G.P.F. vide his order dated 23.3.2004, sent a copy thereof, to the Accountant General, U.P., Allahabad with the request to send authorization letter for payment of 10% residual amount of G.P.F. and the said letter is said to have been sent by registered post. Though the counter affidavit has been filed on 26.7.2004 but it appears to have been prepared in April, 2004 though sworn on 5.5.2004. Nothing has been said about the letter sent by the Office of Chief Engineer, Minor Irrigation. Further in para 9 of the counter affidavit, the respondent No. 4 has said that the correct G.P.F. account number was not informed to it and the Account No. D.E.V.U./1850 was old account series which is now defunct. The said defence is clearly misleading and cannot be accepted for the reason that in the letter dated 23.3.2004 of the Chief Engineer, Minor Irrigation, the G.P.F. Account No. D.E.V.U.-1757 has been mentioned against which 90% payment has been made to the petitioner, therefore, this Court is fully satisfied that the respondent No. 4 is guilty of total inaction and laches on its part for failing to issue the requisite authorization to the competent authority so as to enable it to make payment of 10% residual amount of G.P.F. to the petitioner. The inaction on the part of the respondent No. 4 is clearly unjust, without any lawful reason and the defence taken in the counter affidavit is not only flimsy but even otherwise is incorrect.
7. The inaction on the part of the respondent No. 4 in not conveying its authorization for payment of residual 10% G.P.F. amount to the petitioner has to be deprecated since it is nothing but a sheer harassment of a helpless common man. The respondents should not forget that they are the government servants and being the servants of government are also the servants of the people. Use of their power must always be subordinate to their duty of service. If a public functionary acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but it is abuse. The same would apply to a case of inaction also where it is bound to exercise its power but fail to do so. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. It is the duty of the Court, therefore, to check such arbitrary capricious action on the part of the public functionaries to rescue the common man. It is a matter of common knowledge and judicial cognizance can be taken of the fact that in most of the matters where the sufferance is minor, the common man does not even complain and silently suffer it. He takes it as destiny or fate. The time has come when this Court has to remind the public authorities that harassment of a common man is socially abhorring and legally impermissible. It may harm him personally but the injury to society is for more grievous. Crime and corruption thrive and prosper with the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. The ordinary citizen instead of complaint and fighting normally succumbs and surrender to the undesirable functioning instead of standing against it. He has to be given a confidence and strength enough to stand and expose such illegality and apathy of public functionaries. The Courts have onerous responsibility to generate such confidence and strength in common man.
8. It would also be useful to remind the public functionaries that 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.
9. In the case of Lord Hailsham in Cassell & Co. Ltd. v. Broome 1972 AC 1027 the Apex Court held as follows;
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...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.
10. In the case of Registered Society v. Union of India and Ors. (1996) 6 SCC 530 the Apex court has follows as under:
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.
11. In the case of Shiv Sagar Tiwari v. Union of India the Apex Court has held as follows:
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.
12. In the case of Delhi Development Authority v. Skipper Construction and Anr. 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.
13. Since the payment of 10% of G.P.F. amount to the petitioner-had delayed on account of unjust and illegal inaction on the part of the respondent No. 4, in my view, the petitioner is also entitled for compensatory interest for such delay. In respect to delayed payment of retiral benefits the question of "interest" came up for consideration before the Apex Court in State of Kerala and Ors. v. M. Padmanabhan Nair 1985 (1) SLR 750 wherein it was held:
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 penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement.
14. The inaction and arbitrary delay on the part of the respondent No. 4 in conveying its authorization without any lawful explanation amounts to culpable delay warranting liability of interest and therefore I direct that the respondent No. 4 shall pay interest at the rate of 10% on the total amount of G.P.F. which has not been paid to the petitioner on account of non communication of authorization by the respondent No. 4 from the date after one month from 27.3.2004 when the Chief Engineer, Minor Irrigation, U.P., Lucknow sent letter to the respondent No. 4 requesting for its authorization.
15. In the result the writ petition succeeds and is allowed. The respondent No. 4 is directed to take immediate steps for issuance of authorization to the competent authority for payment of residual 10% amount of G.P.F. to the petitioner and the respondents are further directed to ensure the said payment of the petitioner within two months from the date of production of certified copy of this order. The interest as already directed above shall also be paid to the petitioner within the aforesaid period. The petitioner shall also be entitled for cost which is quantified Rs. 5000/- recoverable from the respondent No. 4.