Awadh Bihari Pandey vs Chief Development Officer and Others

J.C. Gupta, J.—The Petitioner has filed this writ petition for Issuing a writ of mandamus directing the Respondents to pay to him compound interest on the arrears of his pension and the amount of gratuity.

The relevant facts, in brief, are that the Petitioner retired on 30.6.81 from the post of Assistant Development Officer (Panchayat) from Varanasi. There were no dues against him. Despite several requests and hectic efforts the matter of his pension and gratuity was not settled for long. Ultimately the Petitioner was ordered to be given pension along with the arrears by an order of Accountant General on 15.7.93, copy of which has been annexed as Annexure-I. The authorities calculated arrears of pension at Rs. 1,09,028 and the amount of gratuity at Rs. 11,208.45 p. The Petitioner has claimed compound interest @ 14% on the delayed payment as for all this long period he was deprived of his right to have the pension and gratuity which caused great torture and agony to him. The Petitioner made a representation to the Accountant General but no action has been taken on that.

No counter-affidavit has been filed on behalf of the Respondents No. 1, 2, 4 and 5 despite sufficient opportunity. in the counter-affidavit filed on behalf of Respondent No. 3, it is admitted in paragraph 5 that the Petitioner retired on 30.6.81. The necessary papers relating to his pension and gratuity were forwarded by the department concerned to the office of Accountant General as late as on 7.8.92. The Accountant General released the retirement dues within a reasonable time on 18.11.92. It is, further, stated that there is no provision in pension rules for payment of interest on delayed payment of pension. However, according to Government order dated 29.4.83 there is a provision for payment of interest on gratuity where the delay is of more than three months due to administrative lapses. However the matter of payment of interest can only be sanctioned by the Government of Uttar Pradesh in the Administrative department. The aforesaid G.O. makes provision for payment of interest @ 5% per annum. in paragraph 12 of the counter-affidavit, it is further stated that the parent department of the Petitioner alone was responsible for the delay caused in the matter of finalisation of pension and gratuity of the Petitioner.

It is not in dispute that the Petitioner retired on 30.6.81. Even as per the own admission made in the counter-affidavit filed on behalf of Respondent No. 3, it is evident that the papers relating to pension and gratuity of the Petitioner were forwarded to the office of Accountant General by the Officers of the concerned department on 7.8.92 Le., after a lapse of more than 11 years from the date of the retirement of the Petitioner. The papers were examined in the office of Accountant General and the latter released the retirement dues of the Petitioner on 18.11.92. Despite that, payment order was made on 15.7.93. No officer of Panchayat Raj department has cared to file any counter-affidavit to Indicate the circumstances in which the delay was caused in forwarding the pension papers of the Petitioner to the office of Accountant General. in the absence of any explanation being given regarding, the undue delay in the matter of despatch of pension papers of the Petitioner to the office of Accountant General, It can safely be held that the Officers of the concerned department were responsible for this culpable delay in the settlement and disbursement of the pension and gratuity of the Petitioner.

In the case of State of Kerala and Others Vs. M. Padmanabhan Nair, , it has been held by the Apex Court as under:

Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.

In another decision in the case of R. Kapur v. Director of Inspection (Painting and Enbl.) Income Tax and Anr. (1995) 1 UPLBEC 89, the Hon''ble Supreme Court uphold the order of the Tribunal which awarded Interest @ 18% per annum on the unpaid amount of gratuity.

Similarly in the decision in Union of India v. Justice S.S. Sandhawalia (retired) and Ors., the Apex Court upheld the order of the High Court awarding Interest @ 12% per annum on the balance amount of pension as the payment was delayed by over a year or so. The Apex Court held that once it is established that an amount legally due to a party was not paid to it, the party responsible for withholding the same must pay interest at a rate considered reasonable by the Court.

As already indicated above, in the present case no explanation has been put forward as to why the papers relating to the Petitioner''s pension and gratuity could be sent as late as on 7.8.92 by the Officers of the department concerned to the office of the Accountant General. The Petitioner was clearly deprived of the amount which was legally due to him and, therefore, he is entitled to a reasonable Interest which in the present case, I assess at the rate of 12% per annum which the Petitioner will be entitled to get from the Respondents.

The next question that arises for consideration is whether for such culpable lapses of the concerned officers, the Government or in turn the taxpayer should be burdened for the payment of interest or it be paid by those responsible for it? The administrative law of accountability of public authorities for their arbitrary and capricious act or omission has taken many strides. There can be no doubt that the State is liable to compensate a citizen for the loss or injury suffered by him due to arbitrary or highly negligent actions of its employees. The theoretical concept that King can do no wrong has been abandoned in England and the State is now held liable for the torturous acts of it''s servants. The law has always maintained that the public authorities who are entrusted with the statutory function cannot act arbitrarily nor can they be allowed to sleep over the matter for an unreasonably long period in a highly careless manner.

It may not be out of place to mention here that in the G.O. dated 29.4.83, copy of which has been annexed along with the counter-affidavit. It is clearly stated that in the matters in which interest is to be paid on account of delayed payment of gratuity, proceedings for fixing responsibility for causing the delay shall be held and disciplinary proceedings shall be taken against the officer/official found responsible for such delay. From this Government order also. It is clear that the Government has laid emphasis that there should not be undue delay in the matter of payment of gratuity to a retired public servant.

In the case of Lucknow Development Authority Vs. M.K. Gupta, , the Hon''ble Supreme Court observed:

Harassment of a common man by public authorities is socially abhoring and legally impermissible. It may harm him personally but the Injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it.

It was further observed as under:

When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers'' money which is paid for Inaction of those who are entrusted under the Act to discharge their duties in accordance with law.

It has also been observed:

Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio-economic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. in discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power result in harassment and agony then the responsibility to pay the loss determined should be whose ? in a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. 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. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover.

In the present case, in the absence of any counter-affidavit filed on behalf of the department concerned, it is not known to this Court as to what were the reasons which caused undue delay in the despatch of the retirement papers of the Petitioner to the office of Accountant General, and so this Court is not in a position to express any opinion as to on whom the responsibility for the delayed payment could be fastened. It will be appropriate for the State Government, after holding an enquiry, to find out who were the Officers responsible for such unpardonable delay, and to recover the amount of interest from them, which for the present shall have to be paid by the State Government to the Petitioner. Time has now come and it is the need of the hour to take recourse to such penal actions which will not only tone up the working in the Government and public offices but will also help in developing the culture of Window clearance and keep a salutary check on the functioning in the Government and Semi-Government offices.

The State Government, Respondent No. 4, is directed to pay to the Petitioner within two months from today, interest @ 12% per annum on the amount of pension and gratuity for the period from the date of the retirement of the Petitioner till the date of the payment of said amounts. The State Government is further directed to hold an enquiry for finding out as to who were the officers/officials responsible for the delayed payment of the pension and gratuity to the Petitioner and to recover the amount of interest paid to the Petitioner from those who are found responsible for such delay.

With the above directions, this writ petition is allowed. There shall be no order as to costs.