Allahabad High Court
Smt. Somwati Devi Wife Of Late Manohar ... vs State Of U.P. Through Secretary, ... on 27 November, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. The petitioner, Smt. Somwati, has been compelled to file this writ petition seeking a writ of mandamus for payment of unpaid dues of provident fund, gratuity, group insurance etc. of her husband, Late Mahohar Lal Gangwar, who died on 21st August 2005 but dues have not been cleared by the respondents till date despite repeated representations by the petitioner.
2. The facts in brief, giving rise to dispute in present writ petition, are that the petitioner's husband was working in the ministerial cadre in Mandi Samiti, On certain charges, a preliminary enquiry report was submitted on 11.11.1985 by President, Krishi Utpadan Samiti, Jalalabad, District Shahjahanpur as a result whereof, he was placed under suspension on 21.12.1985. It is said that a first information report was also lodged against him. A departmental enquiry was initiated and it continued for about seven years. Ultimately, the enquiry officer submitted his report on 23.3.1993. The Deputy Director (Administration), Krishi Utpadan Mandi Pari shad, U.P. Bareilly vide order dated 15.4.1993 reinstated him in service imposing a minor punishment of stoppage of one increment for one year without cumulative effect and a censure entry for the year 1985-86. Thereafter, the petitioner's husband continued to serve the department and died on 21.8.2005. Since his post death dues, namely, provident fund, gratuity, group insurance etc. were not paid by the respondents, the petitioner sent representation dated 22.1.2006 addressed to the respondent No. 3 stating that she is facing serious financial hardship due to sudden demise of her husband and non payment of dues, therefore, the amount of provident fund, gratuity, group insurance etc. be paid at the earliest. The representation of the petitioner was forwarded to the Secretary. Krishi Uptadan Mandi Samiti, Pilibhit by the Regional Deputy Director (Administration) vide his letter dated 2.2.2006. Since no progress took place, the petitioner also sent reminder dated 7.2.2006 addressed to Secretary, Krishi Utpadan Mandi Samiti, Pilibhit. It is said that by letter dated 10.3.2006, the petitioner was informed by the Secretary, Mandi Samiti, Pilibhit that a sum of Rs. 3,165/- was outstanding against the petitioner's husband and there is some other dues as per audit objection of the year 1985-86 and, therefore, no-dues certificate cannot be issued. The Secretary also sent a similar information to the respondent No. 2 vide his letter dated 10.3.2006. The petitioner vide letter dated 31.3.2006 requested the respondents to clear the outstanding dues of her late husband since her daughter was to marry on 29.5.2006 and a similar requested was made to the Director, Mandi Samiti vide letter dated 20.4.2006. but of no avail. However, the Secretary, Krishi Utpadan Mandi Samiti. Pilibhit vide letter dated 25.4.2006 again informed the petitioner that due to balance of Rs. 3,165/- against the petitioner's late husband and also on account of audit objection of the year 1985-86, no-dues certificate cannot be issued. The respondent No. 4 vide letter dated 4.5.2006 communicated the respondent No. 2 that a sum of Rs. 2,74,417/- is due towards provident fund of Late Manohar Lal , Head Clerk. However, he informed that since some of Mandi Samities where Late Manohar Lal was posted had not furnished 'no-dues certificate' and, therefore, the payment of provident fund could not be cleared. The respondent No. 2 vide order dated 12.5.2006 (Annexure-1 1 to the writ petition), however, sanctioned payment of Rs. 2.74.4717/- towards provident fund of Late Manohar Lal and directed for payment thereof to the petitioner, but he further said that in case, there are some outstanding dues against Late Manohar Lal, such amount may be adjusted before making the said payment.
3. For the first time, the respondent No. 5 by letter dated 17.5.2006 informed that the petitioner's husband has taken house loan advance of Rs. 3.1,400/- against which 3,165/- towards principal sum and 31,531/- towards interest was outstanding which was to be realized from the outstanding dues of Late Sri Manohar Lal. He further informed that there were some deficit in the stock worth Rs. 2,78,598/-, which was to be recovered from Late Sri Manohar Lal and was subject matter of audit objection of 1985-86, but since no final decision could have been taken therein, therefore, the amount of provident fund etc. could not be paid. He, however, requested the respondent No. 4 to realize the entire amount from the outstanding dues of Late Sri Manohar Lal. The respondent No. 4, consequently, vide letter dated 23.5.2006 directed the petitioner to deposit the amount as mentioned in the respondent No. 5's letter dated 17.5.2006 so that the outstanding dues of petitioner's late husbands may be cleared. He again vide letter dated 25.5.2006 required the petitioner to deposit a sum of Rs. 3,13,294.65 as mentioned in the respondent No. 5's letter dated 17.5.2006 so that no-dues certificate may be issued by the respondent No. 5 and the outstanding dues of the petitioner's late husband be cleared. The petitioner submitted a letter dated 26.5.2006 stating that so far as the amount of house loan advance and interest thereon is concerned, the same may be deducted from the amount of provident fund, due for payment. However, she disputed the demand of Rs. 2,78,598.65 stating that in the last almost 16 years. no such demand has ever been raised when her husband was alive and after his death, demand of such amount was clearly unjustified and illegal. Since the respondent failed to make any payment, the petitioner had filed this writ petition.
4. A counter affidavit has been filed on behalf of respondent No. 5 only and Sri Satish Madhyan has put in appearance on behalf of respondents No. 2 to 5. It is averred that the petitioner's husband was relieved from Mandi Samiti, Bisalpur on 31.8.1985 whereafter he joined at Mandi Samiti Jalalabad. District Shahjahanpur. During the period he was posted in Bisalpur, there was some shortage in stock, of which Late Mahohar Lal Gangwar was in-charge and he was found responsible for such losses. A copy of the order showing the aforesaid deficit in stock of the period of 1985-86 of Mandi Samiti, Bisalpur has been placed on record as Annexure CA-1. It is said that since the audit objection has yet not been cleared, neither 'no dues' can be issued for payment of outstanding dues to the petitioner nor any amount can be paid to the petitioner till the aforesaid losses are made good by the petitioner. It is said the losses actually show embezzlement of the goods by Sri Gangwar during his tenure at Bisalpur and, therefore, he was liable to make good the same.
The petitioner has filed rejoinder affidavit wherein she has annexed a copy of the reply submitted by the petitioner's husband in respect to audit objection for the period of 1985-86 pertaining to respondent No. 5 and a copy of the reply submitted to the charge sheet, which ultimately culminated in enquiry proceedings and punishment of stoppage of one increment for one year without cumulative effect and a censure entry, has been placed on record.
5. Learned Counsel for the petitioner contended that at no point of time, the petitioner's husband has been held to be guilty of any losses occurred to any of the respondents and there is no order passed by the authorities for realizing any amount from the petitioner's late husband during the period he was in service. Now after his death, the demand raised by respondent No. 5 for alleged loss is patently illegal and without jurisdiction and is nothing but a pretext to justify non payment of admitted dues of provident fund, gratuity etc. of the petitioner's late husband. He further pointed out that where some enquiry are pending against an employee, the same would stand abated after the death of the employee, in view of the government order dated 13.1.1983. a copy whereof has been placed on record as Annexure-17 to the writ petition. Applying the same principle, no demand can be raised when proceedings have never been initialed to held him guilty of alleged losses. He further contended that non payment of admitted dues towards provident fund, gratuity, insurance etc. to the petitioner is wholly illegal, arbitrary and discriminatory and shows a total non application of mind and adamant attitude on the part of the respondents for justifying their act which entitles the petitioner not only payment of the said amount forthwith, but also interest and appropriate cost.
6. Per contra, Sri Madhyan, learned Counsel for the respondents contended that since a sum more than the amount of provident fund payable to the petitioner was found outstanding and, therefore, there was no occasion for the respondents to pay any amount to the petitioner. He thus, contended that the writ petition is thoroughly misconceived and liable to be dismissed. He also contended that in view of the audit objection, it was incumbent upon petitioner to make good losses pointed out in the said audit objection and so long as said losses are not cleared by the petitioner, there is no occasion for the respondents to make payment of any amount to the petitioner.
7. Heard learned Counsels for the parties and perused the record. In my view, here is a case where respondent can positively be held responsible for inaction in a matter of importance involving substantial revenue for decades together and in order to cover up their own laches, they are insisting upon the petitioner now to make good the same. First of all, 1 propose to consider the justification on the part of the respondents in directing the petitioner to deposit a sum of Rs. 2,78,598.65 which, according to respondent No. 5. has occurred on account of misappropriation and embezzlement by petitioner's late husband Sri Manohar Lal Gangwar. A perusal of the alleged audit objection, which has been placed on record as Annexure CA-1 to the counter affidavit, nowhere shows that there was any enquiry conducted by the respondents or by the audit teem holding Late Sri Manohar Lal Gangwar responsible for losses of the entire amount worth Rs. 2,78,598.65. It would be appropriate to reproduce the noting of the audit as contained in the said objection:
MsM LVkd dh tkap ds le; ns[kk x;k fd xr dbZ o"kksZ ls LVkd jftLVj esa vafdr fofHkUu lkekuks dks dz; laLFkkvksa }kjk O;kikjh;ksa ds uke fuxZr fn[kk;k x;k Fkk A lEcfU/kr O;kikjh;ks rFkk dz; laLFkkvks ds ekax izkFkZuk i= lEizs{k.k esa miyC/k ugha dj;s x;s Fks A izkfIr jlhnsa lkns dkxtks ij Fkh budks lfpo }kjk voyksfdr Hkh ugh fd;k x;k Fkk A ,slh fLFkfr esa Li"V Fkk fd rRdkyhu Hk.Mkj fyfid Jh euksgj yky xaxokj }kjk viuh bPNk vuqlkj lkekuks dks ckWV fn;k x;k Fkk A bl lEcU/k esa ;g mYys[kuh; gS fd tc Hkh xaxokj }kjk pktZ gLrkfjr fd;k x;k Fkk ml le; Hkh fuxZr lkekuks dks okil izkIr dj pktZ esa ugh fn;k x;k A cfYd jlhnsa gh pktZ esa nh xbZ Fkh A ,slh fLFkfr es Li"V gS fd ;s lkekuk LVksj ls xk;c dj fn;s x;s Fks rRdkyhu lfpo Jh izhre flag ls fcuk vkns'k izkIr fd;s lkekuks dks fuxZr djuk rFkk pktZ nsrs le; okil izkIr dj pktZ esa u nsuk mDr rF; dh iqf"V djrs gS A vr% Jh euksgj yky xaxokj ls rFkk orZeku LVksj dhij Jh jke lsod jLrksxh ls Li"Vhdj.k izkIr dj dk;Zokgh vkisf{kr gS A The said objection was communicated to the petitioner's late husband, who, admittedly, submitted his reply vide letter dated 9.7.1987. Further, it appears that in respect to the aforesaid losses, charges No. 8, 9 and 10 were levelled against the petitioner in charge sheet which was replied by him vide letter dated 18.8.1987. The disciplinary authority, ultimately, found that out of the ten charges, charges No. 7, 8 and 9 were partly proved and agreeing with the report of the enquiry officer, he decided to impose punishment of only stoppage of one increment for one year, that too without cumulative effect besides recording a censure entry. The order was not passed as long back as on 15.4.1996 and a copy of the said order of punishment was communicated to the respondents No. 4 and 5 both. Had the petitioner's husband been found guilty of losses, it was open to the respondents to pass an order of recovery of such amount but the disciplinary authority did not pass any order of recovery of any amount. The aforesaid proceedings have attained finality. There is nothing on record to show that after 1993 and till 2005 when Sri Mahohar Lal died, at any point of time, the respondents ever informed him that he is yet responsible to make good losses to the extent as mentioned in the aforesaid audit report of 1985-86. It is only when the petitioner claimed payment of outstanding dues of her late husband towards provident fund, gratuity and insurance etc. the respondents have tried to justify non payment thereof by claiming that she should deposit Rs. 2.78.598.65 towards alleged audit objection of 1985-86. The respondents have nowhere said that the petitioner's husband's reply was ever rejected or any final order was passed holding him guilty for the said losses and to make good the same. In such circumstances, after such a long time, and that too after death of Late Manohar Lal Gangwar it is wholly unjustified and illegal on the part of the respondents to direct the petitioner to deposit amount of alleged losses as referred to in the audit objection of 1985-86 without holding him guilty for such losses and without there being any order passed by the competent authority for recovery of the said amount from him. The aforesaid demand and direction of the respondents is clearly unauthorized and cannot be sustained.
6. This Court also fail to understand as to in what circumstances respondents have kept the matter pending and undecided for more than 20 years and in what circumstances the issue has been raised after the death of the poor employee, who has already suffered a lot on account of prolonged enquiry which ultimately resulted only in a minor punishment. The learned Counsel for the respondents have not disputed that substantial amount towards provident fund, gratuity and group insurance is payable to the petitioner and nothing has been paid so far. It is also not disputed that the petitioner has already consented that the amount of house loan advance along with interest as demanded by respondent No. 5 be deducted from the total outstanding dues payable to the petitioner and balance amount be paid to her. This Court is at pain to see that an employee of the respondents having served for more than 20 years had died and even thereafter the respondents have not shown reasonable and proper conduct of helping the bereaved poor family of the deceased employee. That too despite of petitioner's information to the respondents in writing that the daughter of the petitioner is to go for marriage and the payment of outstanding dues is required for the said purpose. Besides, she also needs financial assistance for better education of other children. The conduct and attitude shown by the respondents not only is illegal but their orders directing the petitioner to pay are not substantiated or supported by any statutory provision or legal principle. On the contrary, it shows a pathetic and stone hearted attitude towards the family of a deceased employee, who has served the respondents' department for more than 20 years.
9. The Courts time and again have observed that employer like the Government or Instrumentalities of the State should behove as a mode employer and should treat its employees and their family in a more decent and cultured manner, but the present case is an illustration to show as to how the respondents have practised totally in a reversed manner. The helplessness of the petitioner, an unfortunate lady, that too a widow, is understandable.
10. The respondents should not forget that they are government servants and being so are 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 i.e. 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, its instrumentalities or authorities. 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. Me 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 the common man personally but injury to society is for more grievious. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. The ordinary citizen instead of complaint and fight 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.
11. 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. Lord Hailsham in Cassell & Co. Ltd. v. Broome 1972 AC 1027 observed:
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.... Harrassment 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. 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 hut you can not hold me personally liable" No public servant can arrogate in himself the power to act in a manner which is arbitrary.
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.
In the case of Delhi Development Authority v. Skipper Construction and Anr. the Apex Court 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 e allowed to become soft, supine and spineless.
In view of the aforesaid, this Court has no hesitation to hold that the petitioner is entitled for a mandamus commanding the respondents to clear the amount of provident fund, gratuity and insurance etc. payable to the petitioner after deducting the outstanding dues of house loan advance along with interest without any further delay. Since, the respondents have failed to show any legal or otherwise justification for non payment of the entire aforesaid amount to petitioner, this Court is also of the view that the petitioner is also entitled for interest on the outstanding amount, which is compensatory in nature and may not restore the situation back to the petitioner, which she has already suffered due to non availability of finance at the time when she needed most, yet can give some respite and solace as a ray of justice and equity.
13. Considering the unreasonable conduct of the respondents and also their sheer inaction extending to a period of more than two decades and odd. This Court is also constrained to observe that the said conduct of the respondents is not only liable to be deprecated in the strongest words but to ensure that in future, it may not be repeated, this Court find it appropriate that an exemplary cost must be awarded against the respondents payable to the petitioner.
14. In the result, the writ petition is allowed. The respondents are directed to pay the entire outstanding dues payable to the petitioner towards contributory provident fund, gratuity, group insurance etc. on account of death of petitioner's husband Late Sri Manohar Lal after deducting the balance amount of house loan advance and interest thereon without any further delay and in any case, not beyond three months from the date of production of a certified copy of this order. The respondents shall also pay interest on the aforesaid amount at the rate of ten per cent per annum which shall be calculated after one month from the date of death of the petitioner's husband till the aforesaid amount is actually paid. The respondents are also liable to pay cost, which is quantified to Rs. 25,000/-.