1.The petitioner was permanent Lecturer in P.V. Inter College, Baraur, Kanpur Dehat (hereinafter referred to as "College") and after attaining the age of superannuation, retired while officiating as Principal on 30.6.2003. The College, being an aided institution, liability of salary lies on State Government under U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as "1971 Act"). It is not disputed that retiral benefits of petitioner were also liability of respondents 1, 3 and 4.
2.It is said that 90 per cent of pension of petitioner was paid on 31.8.2004 i.e. after about one year and two months from the date of retirement of petitioner. Rest of amount was not paid since the Committee of Management of College did not issue 'no dues certificate'. On 31.5.2003, the Committee of Management had placed petitioner under suspension but the order of suspension was not approved by District Inspector of Schools (in short "DIOS") as contemplated under Section 16-G (7) of U.P. Intermediate Eduction Act, 1921 (hereinafter referred to as "1921 Act"). Petitioner, thereafter, approached this Court in Writ Petition No. 39082 of 2006 which was disposed of finally on 27.7.2010 permitting the petitioner to make a representation to Joint Director of Education, Kanpur Region, Kanpur (in short "JDE") within two weeks and the said authority was directed to decide petitioner's representation by a speaking and reasoned order.
3.JDE passed an order on 13.10.2010 observing that Committee of Management had resolved on 17.8.2003 to terminate petitioner, and since the said decision was pending for consideration before U.P. Secondary Education Services Selection Board, Allahabad (in short "UPSESSB") and the Management having also not issued any 'no dues certificate', the representation deserves to be rejected and no amount is payable to the petitioner.
4.Petitioner, thereafter, has come to this Court in the present writ petition.
5.JDE passed another order on 4.3.2011. Realizing the fact that earlier order has not been passed correctly, modified its earlier order in the following manner:
^^ftyk fo|ky; fujh{kd jekckbZ uxj }kjk izkIr vk[;k ,oa vfHkys[kksa esa Hkqxrku ls lEcfU/kr Li"V dh xbZ vk[;k ds vk/kkj ij mDr lhek rd ;kph dk izR;kosnu Lohdkj djrs gq;s ;g Li"V fd;k tkrk gS fd ftyk fo|ky; fujh{kd jekckbZuxj vns; izek.k-&i= izkIr dj vgUre :i ls isa'ku Lohd`r fd;s tkus dh dk;Zokgh ,oa visf{kr i=ktkr isa'ku Lohd`r drkZ vf/kdkjh ds dk;kZy; esa rRdky izkIr djkuk lqfuf'pr djsa] ftlls izdj.k dk fuLrkj.k gks ldsaA^^ English Translation:
"On the basis of the report received from District Inspector of Schools, Rama Bai Nagar and the report relating to payment clarified in the record, allowing the representation of the applicant to that extent, it is made clear that the DIOS, Ramabai Nagar after obtaining no dues certificate shall take steps for sanction of final pension and ensure receipt of requisite documents in the office of pension sanctioning authority immediately so that the matter may be disposed of."
6.The DISO directed the Management to furnish requisite documents including "No-objection Certificate" so that appropriate action in respect to petitioner's claim for pension be taken.
7.Today, an affidavit has been filed sworn by Smt. Maya Niranjan, Joint Director of Education, Kanpur Region, Kanpur stating that UPSESSB disapproved proposal for terminating petitioner's services on 10.1.2006. She also said that in compliance of order dated 4.3.2011, Committee of Management issued 'No-dues Certificate" on 18.6.2011 which was forwarded to JDE on 22.6.2011 and thereafter full and final pension has been released. So far as gratuity is concerned, since petitioner retired on attaining the age of 62 years, therefore, he is not entitled for gratuity.
8.The grievance of the petitioner is, though he retired as long back as on 30.6.2003, his retiral benefits were not cleared in entirety immediately thereafter or within a reasonable time. Petitioner, as a retired employee, was made to run from one office to another helplessly, without any fault on his part and yet, nobody cared to see as to the predicament and harassment of a how a retired employee. Nobody realized any accountability or responsibility. It is only when he came to this Court in the present writ petition and when this Court issued notice to respondents, they had awakened from slumber and initially in a total reckless and mindless manner his claim for payment of entire pension was rejected but when this Court enquired for the details, educational authorities have tried to hush up the issue covering almost 8 years' of delay on their part including the Management for which petitioner had not to be blamed at all. This was nothing but sheer attitude of apathy and indifference shown to petitioner since he has no capacity to fight with the might and capacity to torture of respondents and, therefore, they have treated the petitioner a hapless person and passed orders in a wholly arbitrary and discriminatory manner.
9.Counsel for petitioner submitted, from the very beginning, educational authorities were sure and knew it well that the Management is harassing the petitioner. The suspension made by Management did not find favour with educational authorities. The alleged resolution for terminating petitioner did not find favour with UPSESSB. Even these proceedings attained finality as long back as in 2004 and 2006 respectively but in last five years, thereafter, respondents sit tight over the matter despite repeated and continuous request and visit. Nothing melted them.
10.Since responsibility of payment of retiral dues lies upon State through educational authorities, it would be appropriate to consider the stand of respondents 1, 3 and 4.
11.Initially a counter affidavit was filed by DIOS sworn by Sri Nand Lal, DIOS, Ramabai Nagar. He admitted that he could submit his report vide letter dated 4.3.2011 to JDE and this report admittedly could not have been considered by JDE. She rejected petitioner's representation claiming retiral benefits by order dated 13.10.2010.
12.It is really a pleasant surprise that DIOS sitting at Ramabai Nagar sent letter on 4.3.2011. The said letter has been considered by JDE on the same date sitting at Kanpur admitting that earlier order was passed without knowledge of correct facts and report or comments of DIOS. How and why order without having knowledge of full facts was passed rejecting petitioner's representation on 13.10.2010 is not explained either in counter affidavit nor otherwise. JDE had seen report dated 4.3.2011 of DIOS finding it to her satisfaction that non clearance of entire pension to petitioner was clearly a fault on the part of Management and educational authorities. Therefore, she issued following directions in her letter dated 4.3.2011:
^^ftyk fo|ky; fujh{kd jekckbZ uxj }kjk izkIr vk[;k ,oa vfHkys[kksa esa Hkqxrku ls lEcfU/kr Li"V dh x;h vk[;k ds vk/kkj ij mDr lhek rd ;kph dk izR;kosnu Lohdkj djrs gq;s ;g Li"V fd;k tkrk gS fd ftyk fo|ky; fujh{kd jekckbZuxj vns; izek.k&i= izkIr dj vgUre :i ls isa'ku Lohd`r fd;s tkus dh dk;Zokgh ,oa visf{kr i=ktkr isa'ku Lohd`r drkZ vf/kdkjh ds dk;kZy; esa rRdky izkIr djkuk lqfuf'pr djsa] ftlls izdj.k dk fuLrkj.k gks ldsA**
13.The speed with which respondents thereafter acted is clear from next Annexure CA-3, a letter of DIOS dated 5.3.2011 addressed to the Manager/Principal, Patel Vidyapeeth Inter College, Vareer, Ramabai Nagar wherefrom petitioner retired, directing it to take immediate steps for issuance of 'no objection certificate, to petitioner along with other relevant documents.
14.Since, in the counter affidavit, respondent no. 1 said in para 8 that proceedings for grant of final pension and other dues is going on but nothing was said whether payment was made or not. Hence, further plea that writ petition has rendered infructuous was not and could not have been accepted by this Court. This affidavit of DIOS is sworn on 6.3.2011 at 6.30 P.M. The matter came before this Court on 23.5.2011 and this Court passed following order:
"No counter affidavit has been filed on behalf of respondent No.2. Service was deemed sufficient on respondent No.2 vide this Court's order dated 03.03.2011. It appears that District Inspector of Schools has already issued an order to respondent No.2 to submit papers with respect to payment of pension and retiral benefits to the petitioner and this letter has been issued on 05.03.2011 but till date, nothing has been done so far by the respondents.
It is really surprising that District Inspector of Schools has found himself so incompetent that Committee of Management has dared to disobey his order and he has not been able to take appropriate action in the matter.
Respondents No.1, 2 and 3 are directed to appear before this Court on 4th July, 2011 to explain as to what action they have taken with respect to retiral benefits to the petitioner since no reason has been assigned to this Court that petitioner is not entitled for retiral benefits.
Learned Standing Counsel shall communicate this order to respondents No.1 and 3 and the respondent No.2 shall be served through Chief Judicial Magistrate, Kanpur Dehat.
List this matter on 4th July, 2011.
A copy of this Court shall be supplied to the learned Standing Counsel within forty eight hours."
15.It may also be worthwhile to mention at this stage that respondents have shown utter negligence in responding to the case inasmuch on 23.12.2010, when writ petition was entertained by this Court, learned Standing Counsel representing respondents 1, 3 and 4 was granted three weeks' time to file counter affidavit and respondent no. 5, who was represented through Sri S.P. Singh, Advocate, was also granted same time. Notice was also issued to respondent no. 2 and case was directed to be listed after three weeks. From the order sheet, it is evident that notice was sent by RPAD to respondent no. 2 on 6.1.2011 fixing 7.2.2011. On 7.2.2011 when this case came up before this Court, no counter affidavit was filed by any of the party. This Court passed following order:
"Learned Standing Counsel prays for and is granted two week's further and no more time to file counter affidavit.
Office is directed to give report with respect to service upon the respondent no. 2 by the next date of listing.
List after two weeks.
16.When the matter was taken up next on 3.3.2011, considering office report dated 14.2.2011, the Court treated service upon respondent no. 2 sufficient, but since no counter affidavit on behalf of official respondents had been filed, as requested by learned Standing Counsel, the matter was directed to be taken up on 7.3.2011. As already said, counter affidavit was sworn on 6.3.2011 and, thereafter, filed on 7.3.2011 but only on behalf of respondent no. 1, DIOS, though order impugned in this writ petition was filed by JDE. Neither respondent no. 3 nor respondent no. 4 cared to place their stand before this Court by means of reply despite repeated opportunities granted.
17.Still the Court took a lenient view since respondent no. 1 had said in para 8 of counter affidavit that process of payment is going on. Matter was adjourned and then it came on 7.4.2011. Again it was adjourned and then it came on 29.4.2011. This time due to illness of petitioner's counsel, matter was adjourned and next it came on the board on 23.5.2011. Till this date, despite these adjournments also, respondents no. 3 and 4 did not find it appropriate to place their stand before the Court and to show, how impugned order passed by respondent no. 3 was justified and why it had not taken immediate and early steps for payment of entire retiral benefits to petitioner. On 23.5.2011, when enquired from learned Counsel for petitioner, he said that he has not received remaining pension. The learned Standing Counsel was not in position to explain why it has not been paid and what is the defence for such non payment. It is in these circumstances, Court had no option but to pass order dated 23.5.2011 as quoted above.
18.Pursuant to order dated 23.5.2011, two affidavits have been filed, one by Sri Nand Lal, DIOS and another by Smt. Maya Niranjan, JDE. She admits that petitioner was appointed as Lecturer (Chemistry) on 8.7.1988.Being senior most Lecturer, he was promoted as officiating Principal after retirement of Sri Kishori Lal Sachan, the then Principal of College on 30.6.2002 and that just a few days before his retirement, Management suspended him on 31.5.2003 and directed to hand over charge to Sri Virendra Singh, next junior but the said order of suspension was not approved by DIOS. Petitioner retired on 30.6.2003 on attaining the age of superannuation. After retirement of petitioner, Management sent a charge sheet on various ground and subsequently resolved to terminate petitioner. The said resolution was disapproved/rejected by UPSESSB on 10.1.2006/27.1.2006. She also admits that action of Management against petitioner was not given any importance or recognition by educational authorities inasmuch provisional pension to the extent of 90% was paid to petitioner as interim pension on 31.8.2004, but final pension was not be paid since 'no dues certificate' was not given by Committee of Management. In para 9 of the counter affidavit, she said that DIOS requested the Management to issue 'no-objection certificate' vide letter dated 4.3.2011, 6.6.2011, 16.6.2011, 21.6.2011 and directed to send documents his DIOS Office. "No-dues certificate" allegedly has been issued by Management only on 20.6.2011 forwarded by DIOS on 22.6.2011 and, thereafter without any further delay on 23.6.2011 full and final pension was released to petitioner by JDE.
19.The entire affidavit is completely silent as to why after paying provisional pension to petitioner on 31.8.2004 respondents no. 1, 3 and 4 remain moot spectator and came in action only in 2011 and why the entire correspondence referred to in the counter affidavit relates to period of 4.3.2011 to 23.6.2011 i.e. after this Court passed orders in this writ petition asking the respondents to explain their laxity.
20.An affidavit separately to the similar effect has been filed by DIOS also but he submits that he gave correct report to JDE vide his letter dated 4.3.2011. Since there was no occasion to JDE to consider his report, when earlier order was passed on petitioner's representation, hence he had no fault in the matter.
21.From the order dated 13.10.2010 this is evident that for almost more than a year from the date of retirement of petitioner, not even a single penny towards pension was paid to him. Orders show various payment made to petitioner as under:
8.8.2003 - Amount of provident fund paid 7.11.2003 - Group insurance amount paid 3.12.2003 - Arrears and dearness amount paid 31.8.2004 - Interim pension (90%)
22.The difference of salary for the period of suspension and difference of salary for the post of Principal was also paid but the date of such payment is not mentioned in the order. Petitioner also completed all pension papers and submitted in the College but the same were not signed by officials in the College in time.
23.When no payment towards pension was made, petitioner made a complaint to Lokayukt as also State Backward Classes Commission. The matter was taken up by them. Only thereafter Finance Controller by order dated 11.8.2004 approved payment of provisional pension to petitioner pursuant whereto Deputy Director of Education, Kanpur approved provisional pension on 31.8.2004. Matter of approval for termination of petitioner was referred by Management to UPSESSB on 21.6.2004 but they also took decision thereon only in January' 2006 and apprised Lokayukt of the said fact. Meaning thereby, they also took almost more than one and half year in taking a decision but expedited it only when matter was enquired by Lokayukt. It it not the case of respondents 1, 3 and 4 that this decision of UPSESSB was not immediately communicated to educational authorities. Despite that why educational authorities did not take any action whatsoever for clearing final pension to petitioner has neither been explained anywhere nor is clear to this Court from the affidavits filed by the said respondents.
24.The only defence argued by learned Standing Counsel before this Court is that Management did not issue 'no-dues certificate'. He, however, could not explain why no attempt was made to obtain 'no-due certificate' from Management earlier and if Management was trying to harass the petitioner, how the respondents-educational authorities found themselves incompetent or incapable to take appropriate steps against such erring Management. They all woke up only in March 2011 and onwards when the occasion to file reply in this writ petition had arisen and not otherwise.
25.The hight of harassment to petitioner is writ large from the fact that he had to approach this Court requiring direction for payment of his retiral benefits and when an order was passed on 27.7.2010 directing JDE to look into the entire matter and pass a speaking order, in a casual and routine manner, without collecting full, complete as also correct information, in undue haste, probably to cover up the time within which JDE had to pass the order, impugned order dated 13.10.2010 was passed rejecting claim of the petitioner. Mistake was realized by respondent no. 3 after eight months when it had passed another order modifying order dated 13.10.2010, issuing direction to DIOS for taking steps for payment of final pension to petitioner.
26.In the affidavit of compliance, now JDE has placed on record documents showing that final pension has also been paid to petitioner.
27.The question whether it meets ends of justice and the matter deserves to be closed only with this much. Fundamental right of life and liberty which have been interpreted not as a mere animal like existence but an honourable life has been dishonoured in the hands of State officials. This has shattered the confidence and trust of a common man reposed upon State by the Constitutions makers.
28.Petitioner, a retired employee was a minuscule in the system to put it in motion on his own. The only thing he could have done was to run from one office to another which he did. He left no stone unturned. He knocked the doors of Lokayukt, State Other Backward Classes Commission and this Court in earlier writ petition. The intervention of these offices though set the system in motion to some extent, but it did not yield in payment of final pension and other dues to petitioner at all. The authorities who were really responsible for such payments remained static and inactive as if they have no responsibility, liability and accountability in the matter. The situation of petitioner in such circumstances having a psyche of helplessness is quite understandable.
29.In normal course, this Court would have closed the chapter once payment is made and as requested by Learned Addl. Chief Standing Counsel, would have passed appropriate order consigning the matter but considering torture and harassment met by petitioner in the last so many years in the hands of educational authorities, who did not bother to look into his grievance with a humane approach, the request of learned Addl. Chief Standing Counsel, if accepted, would put a seal of approval over extraordinary laxity and negligence shown by educational authorities and in particular respondent no. 3 who despite confidence reposed by this Court did not come to mark. This would be against public interest and may cause grave injustice to petitioner. When this Court earlier directed the matter to be examined by JDE, it had a confidence that being superior officer, JDE would look into entire aspect of the matter and take appropriate steps to end the misery of petitioner but the said confidence has gone in vain. The act and manner in which respondent no. 3 acted in this case by passing order dated 13.10.2010 has shown that it had no concern with the Majesty of Court's order and feels free to pass arbitrary and reckless order.
30.Moreover, lapses, negligence and inaction atleast from January' 2006 when UPSESSB disapproved proposal of Management, is wholly non understandable. This extraordinary delay and laches in non-payment of final pension and other dues to petitioner cannot be ignored. Petitioner, admittedly, has been made to suffer not only himself but the family also, that too at an old age. The payment of pension now on 23.6.2011 technically may amount to satisfy some belated requirement of petitioner but it is not the complete justice which is the constitutional obligation of this Court.
31.In view of this Court, mere payment, that too so belated, if allowed to stay without anything further, this would be nothing but a bit short of true and complete justice. It would not compensate the petitioner for the harassment and helplessness he has faced althrough though his fundamental right under Article 21 has been infringed with impunity althrough. This Court has no hesitation in observing that total inaction, apathy and negligence on the part of educational authorises and in particular, respondent no. 1 and 3, has no valid and lawful justification at all.
32.I am also satisfied that this act was not only illegal and arbitrary but travels in the realm of malice in law, therefore, it deserves to be dealt with severely so that no Government officer in future may have the audacity of harassing a helpless poor employee, firstly, by torturing him/her by detaining his/her lawful dues and thereafter to escape from any liability so as to boast that nobody can touch him even if he commits an ex facie illegal or unjust act. Every Government officer, howsoever high, must always keep in mind that nobody is above law. The hands of justice are meant not to only catch out such person but it is also the constitutional duty of a Court of law to pass suitable order in such a matter so that such an illegal act may not be repeated, not only by him/her but others also. This should be a lesson to everyone committing an act which is ex facie unjust and having not been done for any just or lawful reason. Prima facie it must be treated to have been done for collateral purposes and covered by the term ''malice in law'.
33.The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :
"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)
34.The Apex Court further in para 9 of the judgment in S.R.Venkatraman (supra) observed:
" 9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."
35.In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :
" We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."
36.In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law , the Apex Court in para 16 of the judgment observed as under:
"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
37.In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:
"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."
"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."
38.In brief malice in law is attracted when power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. (See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198.
39.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 employee.
40.The respondents being the State Government, i.e., "State" under Article 12 of the Constitution of India, 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.
41.Regarding harassment of a Government employee, referring to observations of Lord Hailsham in Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027 and Lord Devlin in Rooks Vs. Barnard and others 1964 AC 1129, the Apex Court in Lucknow Development Authority Vs. M.K. Gupta JT 1993 (6) SC 307 held as under;
"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....... A 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...........Harassment 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." (para 10)
42.The above observation as such has been reiterated in Ghaziabad Development Authorities Vs. Balbir Singh JT 2004 (5) SC 17.
43.In the case of Registered Society Vs. Union of India and Others (1996) 6 SCC 530 the Apex court said 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".
44.In the case of Shivsagar Tiwari Vs. 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."
45.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."
46.Considering the matter in a comprehensive manner, the justice and equity requires this writ petition to be disposed of in the following manner:
(a) On the remaining amount of pension, which was delayed to petitioner on and after January 2006, the petitioner shall be paid interest at the rate of 10 per cent per annum till actual payment.
(b) Petitioner shall also be entitled to cost which I quantify to Rs. 1,00,000/- (Rupees one lac), out of which fifty thousand is against respondent no. 1 and fifty thousand against respondent no. 3.