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Smt.Vijay Kumari Devi v. State Of U.P.& Another - WRIT - A No. 49317 of 2000 [2007] RD-AH 10209 (25 May 2007)


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Reserved on 26.4.2007  

           Delivered on  25.5.2007

Civil Misc. Writ Petition No. 49317 of 2000

Smt. Vijay Kumari Devi


State of U.P. & others

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

The petitioner, Smt. Vijay Kumari Devi, has filed this writ petition seeking a writ of mandamus commanding the respondents to pay the amount of provident fund, gratuity and group insurance etc. as a result of death of her husband, Late Dr. Sheo Mangal, who was working  as Medical Officer in the department of Medical and health, and died on 30.4.1996. Thereafter, petitioner sent a representation dated 20.6.1996 requesting respondent no. 3 to pay entire post death dues including amount of provident fund, gratuity, group insurance, leave encashment etc. The respondents after almost a year, vide order dated 16.6.1997 sanctioned family pension to the petitioner and paid 90% amount of gratuity, withholding 10% on the condition that the same shall be released later on. The amount of provident fund and link insurance etc. was not paid. On 17.6.1999, the amount of gratuity was revised and direction was issued for payment of an additional amount of Rs. 31,520/- but the payment was not actually made.

The respondents have filed counter affidavit stating that the provident fund and gratuity has already been paid and the amount of link insurance could not be paid due to non completion of certain formalities by the petitioner. It is said that 10% amount of gratuity which was withheld could not be paid since the petitioner did not make available Form 2 and 3 on account whereof the said payment was stopped by the Pension Directorate. The said forms were made available by the petitioner subsequently and were forwarded by respondent no. 3 vide letter dated 22.11.2000 to the Pension Directorate. The amount shall be paid after receiving sanction from the Pension Directorate. With regard to payment of provident fund, it is said that a sum of Rs. 1,48,746/- was paid on 24.9.2001 and a sum of Rs. 35,886/- was paid on 17.7.2002. A supplementary counter affidavit has also been filed stating that the amount of link insurance has now been paid vide cheque dated 28.4.2006 and now the entire amount has been paid to the petitioner.

The petitioner in the rejoinder affidavit has said that the respondents paid outstanding dues after the a long time since death of her husband. This shows negligence and carelessness inasmuch the sum of Rs. 1,48,746/- towards part of provident fund was paid on 24.9.2001, and balance amount was paid on 17.7.2002. Similarly, despite the fact that the payment of link insurance Rs. 30,000/- was sanctioned by the Addl. Director vide order dated 7.11.2002, yet it was actually paid only vide cheque dated 28.4.2006. It is contended that delay in payment of the aforesaid dues entitle the petitioner for interest on the aforesaid amount inasmuch the delay is wholly arbitrary and without any reason whatsoever.

We have heard counsels for the parties and perused the record.

In the counter affidavit as well as supplementary affidavit filed by the respondents, we do not find any reason whatsoever to explain as to why the payment of provident fund was delayed by almost five years and more and for payment of link insurance even after the order passed by the Addl. Director authorizing payment in February 2002, the respondents took more than 4 years in actual payment. There is no explanation at all for the aforesaid delay in any of the affidavits. In these circumstances, we have no hesitation in holding that delay in payment of the aforesaid amount was on account of total apathy, negligence and inaction on the part of the respondents. Payment of the aforesaid amount was statutory responsibility of the respondents. In the absence of any justification for delay, the respondents cannot absolve of their liability for payment of interest since it is nothing but sheer harassment of a helpless common man. 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. 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 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.

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. Vs. 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 Vs. Union of India and Others (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".

In the case of Shiv Sagar Tiwari Vs.l Union of India (1996) 6 SCC 558 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 Vs. Skipper Construction and Another AIR 1996 SC 715 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 be allowed to become soft, supine and spineless."

Where, the authorities have acted negligently showing laxity and apathy to the need of the legal heirs of the deceased employee or the retired employees and have delayed payment of statutory and rightful dues, they are liable to pay interest compensatory in nature for the reason that such delay is nothing but culpable delay warranting liability of interest. In State of Kerala & others Vs. M. Padmanabhan Nair, 1985 (50) FLR 145, the Apex Court considering delay in payment of retiral dues to a government servant and liability of interest of the Government in such matter held as under :

"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 atleast 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."

In view thereof, we allow this writ petition to the extent that on delayed payment of the amount of provident fund and link insurance, the petitioner shall be entitled for interest at the rate of 8% p.a. with effect from expiry of three months from the date of death of the petitioner till the amount was actually paid. However, the State of U.P. shall be at liberty to recover the amount of interest paid to the petitioner under this Order from the person/persons who are found responsible for such delay after making necessary enquiry in accordance with law. The petitioner shall also be entitled to cost, which is quantified to Rs. 1,500/-.

Dt. 25.05.2007



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