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Virendra Prakash Verma v. State Of U.P. & Others - WRIT - A No. 35807 of 2004  RD-AH 6079 (3 April 2007)
Court No. 25
Civil Misc. Writ Petition No. 35807 of 2004
Virendra Prakash Verma
State of U.P. and others
Hon'ble Sudhir Agarwal, J.
Heard Sri Ram Chandra Srivastava, learned counsel for the petitioner and Sri R.D. Khare, learned counsel for the respondents.
Since the counter and rejoinder affidavits have exchanged, as agreed by learned counsel for the parties the writ petition is being finally decided at the admission stage under the rules of the Court.
The petitioner has approached this Court under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to pay pension and gratuity including arrears from the date of superannuation with interest of Rs. 18% within a stipulated time.
In brief the facts as stated in the writ petition are that the petitioner is working as Junior Engineer in the erstwhile U.P. State Electricity Board and now U.P. Power Corporation Ltd. After attaining the age of 58 years he retired on 30.11.2002 and provisional gratuity and pension was fixed by the respondents vide order dated 8.10.2002 sanctioning payment of Rs. 74,680/- towards 90% amount of gratuity (provisional) and vide order dated 16.12.2002 minimum pension as Rs. 1275/- w.e.f. 1.12.2002. The petitioner made a representation dated 19.12.2003 requesting the Executive Engineer, Electricity Distribution Division, U.P. Power Corporation Ltd. Bijnor to pay his entire final pension and gratuity and also disputed the computation of amount of provisional pension and gratuity. Reminder was also sent by the petitioner on 18.2.2003 whereafter the Executive Engineer passed an order on 3.3.2003 enhancing provisional pension to Rs. 2000/- per month w.e.f. 1.12.2002. Still thereafter neither the pension and gratuity was finalized by the respondents nor the same was paid despite several representations, some of which have been filed as Annexure Nos. 6 and 7 to the writ petition. Since the respondents did not take any action, the petitioner has filed this writ petition.
At the time of admission this Court issued an interim mandamus on 2.9.2004 directing the respondents to pay the entire amount of pensions, gratuity and other dues to the petitioner within a period of six weeks or to show cause by filing a counter affidavit.
The respondents have filed a counter affidavit sworn by Sri Prakash, Executive Engineer, Electricity Distribution Division, U.P. Power Corporation Ltd. Bijnor. He has said that the service of the petitioner is not unblemished inasmuch as he has been penalized on several occasions. It is also said that the pay fixation of the petitioner was finalized by the Executive Engineer, Electricity Urban Distribution Division, Ghaziabad vide order dated 3.11.2003 verifying the last pay drawn by the petitioner as Rs. 8925/-. However, his provisional pension was calculated on the basis of the last salary drawn by the petitioner at the time of retirement i.e. on 30.11.2002. Further the petitioner had received the Receipts No. 74883 and 74884 for realization of bill of the consumers whereagainst the petitioner actually realized a sum of Rs. 1,49,848/- and misappropriated the same. The remaining receipt book is also lying with the petitioner who has not returned the same despite repeated request on account whereof departmental proceeding has been initiated against him and the same is pending on account whereof his pension could not be finalized. It is further stated that despite several request, the petitioner did not return the said receipts and therefore, the pension cannot be finalized as per the order dated 21.5.2003 issued by the General Manager, U.P. Power Corporation Ltd., Lucknow, a copy whereof has been filed as Annexure-4 to the writ petition.
The petitioner has filed a rejoinder affidavit denying the averments pertaining to departmental inquiry. He has also said in para 10 of the rejoinder affidavit that he has deposited a sum of Rs. 1,49,848.40 on 18.12.2002 and in this regard a receipt has also been issued by the office of the respondent no. 2. A photocopy of the certificate/letter dated 18.12.2002 issued by the Executive Engineer, Electricity Distribution Division, Bijnor has also been filed as Annexure-RA-1 which states that the miscellaneous advance of Rs. 1,49,848.40 outstanding against the petitioner has already been realized from his other dues. The petitioner has also filed a supplementary rejoinder affidavit stating in para 3 thereof that as on the date of filing the said affidavit which is sworn on 16.11.2006, no disciplinary action/inquiry is pending against his and the averments made in para 9 of the counter affidavit in respect to pendency of departmental inquiry is totally false.
The respondents have not placed anything on record to controvert the aforesaid facts stated by the petitioner.
Learned counsel for the petitioner vehemently contended that once the amount which is sought to be found deficit has already been realized by the respondents, there is no occasion for the respondents not to pay final pension and gratuity and other dues to the petitioner and inaction on the part of the respondents is wholly arbitrary. He further contended that since no departmental inquiry has been initiated against the petitioner till date, therefore, the respondents have no authority to withhold the final amount of the pension and gratuity of the petitioner.
Sri R.D. Khare, learned counsel appearing for the Corporation submitted that despite his best efforts the respondents could not verify as to whether any charge sheet has been issued to the petitioner and what is the reason for withholding the amount. Further he sought to justify non-payment of final amount of gratuity and pension on the basis of non-return of the receipts book and Rs. 1,49,848/- realized by him from the consumers.
I have heard learned counsel for the parties and perused the record. Though in the counter affidavit in para 9 the respondents have said that departmental inquiry has been initiated but there is nothing on record to show that any departmental inquiry has been initiated by the respondents till date by issuing a charge sheet to the petitioner. Moreover the petitioner has categorically stated in para 3 of supplementary rejoinder affidavit that no departmental inquiry is pending against him and the averments in para 9 of the counter affidavit are false. The respondents have not placed anything on record to contradict the same. I have therefore no reason to disbelieve the averments made by the petitioner. Since neither any charge sheet has been issued nor any inquiry has been initiated against the petitioner, in the absence thereof, the learned counsel for the respondents could not place any provision whereunder the respondents are empowered to withhold the payment of final pension and gratuity and other retiral dues to the petitioner. Moreover, the sum of Rs. 1,49,848.40 which is said to have been misappropriated by the petitioner having already been made good as is evident from letter dated 18.12.2002 (Annexure-RA-1 to the rejoinder affidavit) showing that now no amount is outstanding against the petitioner, hence there appears to be no justification available for the respondents for non-paying final pension and gratuity and other retiral benefits to the petitioner. In my view withholding of the said amount is clearly arbitrary and unjust. It is also surprising that on the one hand the Executive Engineer has issued letter dated 18.12.2002 that a sum of Rs. 1,49,848.40 has already been realized from the petitioner and yet in the counter affidavit which has been sworn on 25.10.2004 the same amount has been referred as retained by the petitioner and non payment of the final pension and gratuity of the petitioner is sought to be defended for that reason itself. It appears that the respondents have not dealt with the case of the petitioner in a straightforward and bona fide manner but he is being harassed in one or the other manner and even on the ground which are non-est. I do not find any reason for inaction on the part of the respondents in finalizing pension and gratuity of the petitioner at least after December, 2002.
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 harassment at the old age when they have already retired and have to survive and maintain themselves and their family with the meager 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 gets 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 but 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. This Court is constraint to make the aforesaid observations for the reason that the respondents on the one hand try to justify non payment of retiral benefits to the petitioner on the ground of pendency of departmental inquiry but have failed to show that any inquiry was even initiated against him. Further on the one hand they tried to alleged that the petitioner has illegally retained a sum of Rs. 1,49,848.40 which he has realized from the consumers and not accounted for to the respondents but even that amount has been paid at least on 18.12.2002 and there appears to be no reason available for the respondents for not taking any further action thereafter. I have no option but to condemn inaction on the part of the respondents in not finalizing pension and gratuity to the petitioner in view of the aforesaid facts and circumstances. In my view the petitioner also deserve interest on the delayed payment of retiral benefits besides exemplary cost.
In view of the above the writ petition succeeds and is allowed. The respondents are directed to pay entire outstanding amount of pension and gratuity, and other dues found payable within a period of three months from the date of production of certified copy of this order. The petitioner shall also be entitled for interest at the rate of 8% payable on the aforesaid amount w.e.f January, 2003 till actual payment. The respondents are also liable to pay cost quantified at Rs. 5000/-. However, it is made clear that the U.P. Power Corporation may make necessary inquiry in the matter to ascertain responsibility of the person who has caused delay in the aforesaid matter and may recover the amount of interest and cost paid under this order from such person.
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