Sudhir Agarwal, J. - (1.) Heard Sri R.S. Mishra, learned counsel for the petitioner and learned Standing Counsel for the respondent No. 1 and Sri A.C. Tiwari, learned counsel for the respondents No. 2 and 3.
(2.) The petitioner has sought a mandamus directing the respondents to pay retiral benefits to the petitioner which have not been paid till date alongwith interest at the rate of 12% per annum. The brief facts relevant for the purpose of present case are that the petitioner, who was working as Clerk in the Nagar Nigam, Kanpur Nagar, attained the age of superannuation on 31st October, 2001 but not only retiral benefits have not been paid but even arrears of revised pay scale from 1.1.1996 to 30.6.1998 have also not been paid. The contention of the petitioner is that the act of the respondents of non payment of retiral benefits to the petitioner and other dues is deliberate, arbitrary and discriminatory in as much as Nagar Nigam has not curtailed any of its expenditure but on the pretext of financial crises is not paying dues to which the petitioner is entitled. It is also urged that pension amounts to deferred wages on account of long service rendered by him with the employer and, therefore, non payment of his pension and other dues is violative of Articles 16 and 21 of the Constitution of India.
(3.) Sri A.C. Tiwari, learned counsel appearing for the respondents No. 2 and 3 has filed a counter affidavit and submitted that as large number of persons have retired from the service of the respondents No. 2 and 3 and liability to make payment of their retiral dues are also not disputed by the respondents but on account of financial crises, retiral benefits could not be paid to the petitioner and similarly placed other persons. He has also drew attention of the court to the stand taken by the respondents No. 2 and 3 in paragraphs 5, 6, 7 and 8 of the counter affidavit which are as hereunder : 5. That in reply to the contents of paragraphs No. 4, 5 and 6 of the writ petition it is stated that the Corporation is not denying its liability to make payment of retiring benefits to retired employees as claimed by the petitioner but only oh account of financial crisis the answering respondents found very difficult to make payment within time thus in pursuance of directions of Lokayukt, U.P. Lucknow the list of retiring employees is already prepared according to seniority/retirement date and year-wise and in strict compliance while payment was to be made to retired employees according to seniority, a large number of petitioners including present petitioner filed writ petitions and orders obtained, the department as per availability of funds is paying in compliance of court's order as well as, looking into the critical position and financial needs of retired employees on preferential basis as also on representation of retired employees considering the genuineness, needs and necessities of the matter they are being paid without waiting their turn. 6. That in reply to the contents of paragraphs No. 7 and 8 it is stated that the answering respondents are not denying their liability to make payment of retiral dues but on account of financial crisis the retiral benefit could not be paid as a whole. 7. That in reply to the contents of paragraph 9 of the writ petition it is stated that the financial condition of Nagar Nigam is very critical and as such what about to make payment of retiral dues within time to its large number of retired' employees, the Corporation finds itself unable to make payment of regular salary month to month to its working staff/employees. The delay occurring in making payment delayed is not as a result of deliberate intention but beyond control hence the Corporation may be exempted from making payment of interest to the retired employees. 8. That the contents of paragraph No. 19 of the writ petition as stated are regarding to orders passed by the Hon'ble Court in particular facts of that very cases which may not be taken as a precedence. It is further stated that in such peculiar cases, in case Hon'ble Court directs for payment of interest, the department having no option except to comply the court's order irrespective of financial crisis, but so far as the delayed payment are concerned it has not been a result of knowingly, purposely and deliberately, but beyond control.;