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ASIF BEG AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Asif Beg And Others v. State Of U.P. And Others - WRIT - A No. 41395 of 2003 [2006] RD-AH 18151 (27 October 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 14

Civil Misc. Writ Petition No. 41395 of 2003

Asif Beg and others

Vs.

State of U.P. & others

Hon'ble Sudhir Agarwal, J.

This writ petition under Article 226 of the Constitution of India has been preferred by 4 petitioners seeking a mandamus directing the respondents to pay arrears of salary and other post retiral benefits along with interest to the petitioners.

The facts, which are not much in dispute, are that the petitioners were appointed as Naib Moharir (Assistnat Clerk) in the officer of Respondent No. 2 on July 1970, February 1966, 1st February 1966 and 1st January 1966 respectively. They were working continuously and at no point of time, any order withholding their salary was passed by the respondents. However salary for the period of July 1996 to March 2003 was not paid to the petitioners pursuant whereto a representation was made on 5th April 2003 claiming salary for the aforesaid period as well as bonus and other dues. The respondents did not take any action towards payment of the aforesaid dues. The respondent no. 4 also attained age of superannuation on 28th February 2003 and was entitled for payment of his post retiral benefits, but the same was also not paid and therefore the present writ petition has been preferred.

Respondents have filed a counter affidavit, in which the claim of the petitioners regarding non payment of salary, bonus and other dues, as detailed in para 4 of the writ petition has not been disputed and the only defence taken is that due to very bad and poor financial condition of Nagar Panchayat, Katra, payment of salary and other allowances and post retiral benefits could not be made. Respondents have also filed Annexure CA-1 to CA-4 giving details of the outstanding dues of the petitioners which demonstrates as under :

Annexure CA-1 is in respect to petitioner no. 1 showing arrears of salary from July 1996 to October 2003 as Rs. 1.71 Lac, arrears of bonus as Rs. 20,000/-, arrears of provident fund as Rs. 5,000/- and arrears of other salary dues between August 1983 to June 1998 as Rs. 21,500/-. In respect to contribution towards pension, it is mentioned  that about 2.5 lac is outstanding towards such contribution and shall be deposited on availability of the fund.

Annexure CA-2 and 3 also contain the details of dues in respect to petitioner nos. 2 and 3, which is similar to that of petitioner no. 1.

Annexure CA-4 provides a chart of outstanding dues in respect to the petitioner no. 4 which is similar to petitioner nos. 1, 2 and 3 except the arrears of salary between July 1996 to February 2003 which is said to be Rs. 1.26 lac, arrears of bonus etc. is Rs. 71,500/- and in respect to pension and other post retiral benefits, it is said that the matter is pending for approval of the Commissioner and shall be paid after obtaining his sanction.

Further a Letter of Executive Officer has been filed as Annexure CA-5 showing that a partial payment of Rs. 52,631.00 has been made to the petitioner no. 4. In respect to other dues, a letter of Executive Officer has been filed as Annexure CA-6 of the counter affidavit of the respondent nos. 2 and 3 stating that on account of non availability of fund, the dues could  not have been paid.

The short question requires consideration in this case is whether the respondents are justified in not paying the petitioners their dues which includes pension and post retiral benefits of respondent no. 4, who has already attained the age of superannuation after rendering the service of a long time, only on the ground of paucity of funds.

I have heard Sri Neeraj Pandey, learned counsel for the petitioners, Sri Prem Chand, learned counsel appearing on behalf of respondent nos. 2 and 3 and learned standing counsel appearing for respondent no. 1 and also perused the record.

It is not disputed by the respondents that the petitioner have actually discharged duties and therefore, are entitled for salary. Right to earn livelihood has been recognized as a fundamental right under Article 21 of the Constitution of India. Mere existence of a human being is not sufficient and survival with dignity and availability of bare minimum necessities is necessary to avail the said fundamental right of Life and liberty enshrined under Article 21 of the Constitution. It is not disputed that the respondent-Nagar Panchyat is a Local Body and a "State" under article 12 of the Constitution of India. Is it permissible to "State" to take work from its employees without payment of wages or salary?

Article 23 of the Constitution prohibits begar and states as under :

"23 Prohibition of traffic in human beings and forced labour. - (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State Shall not make any discrimination on grounds only of religion, race, caste or class or any of them."

When the petitioners were in the employment of Nagar Panchayat, it was not open to  them to refuse work without incurring the risk of disciplinary proceedings as refusal to work may have constituted "misconduct". Therefore, the petitioners had no option but under the terms and conditions of the service were forced to discharge duties, but not paid any salary for the period July 1996 to February/March 2003. This is nothing but a begar which is prohibited under Article 23 of the Constitution of India. The respondents under the Constitutional provisions were bound to pay salary to the petitioners for the work they have discharged, otherwise, they were guilty of committing a breach of article 23 of the Constitution of India. Besides, the petitioners' right to receive salary is a fundamental right guaranteed under article 21 of the Constitution of India since life includes right to earn livelihood. Therefore, it was the Constitutional obligation of the respondents to pay salary to the petitioners. The aforesaid statutory obligation cannot be defeated on the ground of paucity of funds. It is impermissible in law.

In the case of Municipal Council, Ratlam Vs. Vardhichan and others AIR 1880 SC 1622 the Municipality failed to discharge its statutory obligation of maintenance of roads, sewerage systems, public streets etc. which caused public insanitation, collection of filth, garbage etc. menacing public health in general. The Magistrate under Section 123 Cr.P.C. passed order directing the Municipality to maintain public roads, clean sewer and sewerage systems. The Municipality approached the Hon'ble Supreme Court raising plea of non-availability of requisite funds in discharge of its statutory functions. Repelling the same, it was held :

"Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under S. 123 of the Act ........

....The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerated it from statutory liability has no juridical basis. The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, S. 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachyder-mic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be." (emphasis added.)

In view of the above legal position, the statutory responsibility of the employer to pay wages to its employee who have rendered services, merely on the ground of paucity of funds cannot be sustained having no juridical basis.

Similarly non-payment of post retiral benefits to the respondent no. 4 on the ground of financial crisis is also neither just nor a valid reason to deny the same, to which, the employee is entitled as a matter of right. In the case of D.S. Nakara Vs. Union of India 1983 (1) SCC 305, it has been held as under :

 "pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. (Para 20).

In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from underserved want was recognized and as a first steps pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The guid pro quo was that when the employee was physically and mentally alert, he rendered not master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount. (Para 22).

Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. (Para 28).

Summing up it can be said with confidence that pension is no only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. (Para 29)"

Thus, retiral benefits are not bounty but a right earned by the employee and thus it is deferred wages payable to an employee in lieu of considerable length of service rendered by him.

The quantum of retiral benefits although is governed by statutory rules but it is clear that the employee has a legal right to receive his retiral benefits as soon as he retires. After retirement, the employee is not paid any salary. Only some amount is paid in the form of retiral benefits to provide him monetary assistance to sustain himself and his dependents with honour and dignity. Non payment of pension, therefore, amounts to denying right to earn livelihood to an employee who after retirement may need it most, since he does not get thereafter a regular salary from the employer but at the advanced age, the employee and his family is taken care by the nominal amount paid to him as retiral benefits. The respondents have also not cared to place on record details showing as to how they claim that they do not have sufficient funds to pay retiral benefits to the employees. It is not the case of the respondents that day-to-day functioning has hampered or the officers of the respondents are also not getting their regular salary. No details of any expenditure etc. have been furnished by the respondents. In a vague and evasive manner, the plea of financial crisis has been taken to deny the admitted liability. Apathy on the part of the respondents is writ large from the facts that there is no mention in the entire counter affidavit that the retiral benefits shall be paid to the petitioner within a reasonable time. This itself shows total inaction and arbitrariness on the part of the respondents.

The respondents have not shown any where as to what efforts they have made to arrange the requisite finance for payment of retiral benefits to the petitioner no. 4 who had retired as long back as on 28th February 2003. Counter affidavit is completely silent on this aspect and shows total laxity and apathy on the part of the respondents.

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 in action 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.

In the case of Lord Hailsham in Cassell & Co. Ltd. Vs. 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...........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 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."

In this view of the matter, I have no hesitation in holding that non payment of retiral benefits and others to the petitioner no. 4 is arbitrary, and unreasonable. There is no valid justification for the respondents to delay payment thereof.

Now the question comes about entitlement of the petitioner no. 4 for interest on delayed payment of retiral benefits. Since the date of retirement is known to the respondents well in advance, there is no reason for them not to make arrangement for payment of retiral benefits to the petitioner no. 4 well in advance so that as soon as the employee retires, his retiral benefits are paid on the date of retirement or within reasonable time thereafter. Inaction and inordinate delay in payment of retiral benefits is nothing but culpable delay warranting liability of interest on such dues. In the case of State of Karala and others Vs. M. Padmanabhan Nair, 1985 (1) SLR - 750, the Hon'ble Supreme Court has 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 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 this view of the matter, this Court is of the view that the claim of the petitioner no. 4 for interest on the delayed payment of retiral benefits has to be sustained.

Accordingly, this writ petition succeeds and allowed. A mandamus is issued to the respondents nos. 2 and 3 to pay the entire arrears of salary and other dues to the petitioners; all post retiral benefits including pension to the petitioner no. 4 with interest at the rate of 6 per cent p.a. with effect from the expiry of two months from the expiry of two months from the date of retirement till it is paid; a cost of Rs. 5,000/- to the petitioners.

The aforesaid payment shall be ensured to the petitioners within a period of three months from the date of production of a certified copy of the order before the Respondents. However, it is made clear that it would be open to the respondents to make an enquiry and ascertain as to who is the person responsible for such delay in payment of the aforesaid dues in accordance with law and to recover the excess amount paid to the petitioners pursuant to this order from such person.

There shall be no order as to costs.

Dt. 27.10.2006

PS-41395/2003


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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