JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Rajesh Rai for the petitioner and learned Standing Counsel for the respondents. 2. The grievance of the petitioner is that he was working as Junior Clerk in the office of Chief Medical Officer, Mathura and on attaining the age of superannuation retired on 31.12.2007 but his pension, provident fund, gratuity, Leave encashment and his salary from 6th August, 2007 to 31st August, 2007 has not been paid. 3. The respondents have filed counter affidavit stating that the petitioner was not efficient and used to remain absent, inasmuch he snatched his service book from one Gopal Das and did not return the same. Hence the document regarding his retiral benefits could not have been completed. 4. This Court by order dated 15th May, 2009 directed the authorities concerned to prepare the duplicate service book and also to be present before the Court for completion of the formalities. Thereafter on 8th July, 2009 the following order was passed. “The following order was passed on 15.5.2009 in pursuance thereof the Chief Medical Officer, Agra and the Divisional Additional Director-cum-Superintendent in chief District Hospital Agra are present with their respective affidavits. “Heard counsel for the parties and perused the record. Whether the service book of the petitioner is with him or with the department is not in dispute but what is in dispute is that his retiral dues has not been paid. The petitioner claims to be running from pilar to post for his retiral dues and that he is being harassed by the respondents. Without entering into the controversy whether the service book of the petitioner is with him or with the department, the respondent Nos. 3 and 4, Divisional Additional Director-cum-Superintendent-in-Chief Medical Officer, Agra are directed to prepare the duplicate service book of the petitioner within a period of six weeks from today for the purpose of payment of retiral dues to the petitioner. All the required formalities which are to be filled up by the petitioner shall also be produced in Court on 8th July, 2009. The petitioner along with Chief Medical Officer, Agra shall also be present on that date for completion of the formalities before the Court so that no controversy arise in future with regard to completion of the formalities. All the required formalities which are to be filled up by the petitioner shall also be produced in Court on 8th July, 2009. The petitioner along with Chief Medical Officer, Agra shall also be present on that date for completion of the formalities before the Court so that no controversy arise in future with regard to completion of the formalities. List the matter on 8th July, 2009.” The Chief Medical Officer has stated that since the petitioner was not under his administrative control, he has no role to play and in fact the Divisional Additional Director-cum Superintendent-in-Chief District Hospital, Agra is the competent authority. In the affidavit sworn by the Additional Director, he has detailed the steps taken by him for preparing the duplicate service book of the petitioner and he is awaiting action on the part of the Chief Medical Officer, Agra, Etah, Mathura, Aligarh and Hamirpur where the petitioner had been posted and he has also sent reminders. On this ground he further seeks two months time to complete the service book. Considering all the facts including the fact that the petitioner has retired in 2007, he is directed to complete the service book of the petitioner by the next date. The Chief Medical Officer of Aligarh, Etah, Mathura, Aligarh and Hamirpur are further directed to forthwith supply the necessary details to enable him to complete the preparation of the service book of the petitioner. All the relevant papers which are to be signed by the petitioner shall also be produced in Court on the next date so that it is finalised for further action. In case the service book is finally prepared the Additional Director need not appear on the next date, but the relevant papers to be sent or verified by the petitioner should be produced through one of his subordinate. Let a copy of this order be given to Sri Ravi Ranjan Standing counsel within a week to enable compliance. List on 10.8.2009.” 5. Subsequently on 10th August, 2009 this Court passed the following order: “In pursuance of the order of this Court dated Ist July 2009, the service book has been produced, but the petitioner has refused to sign stating that revised pay scale in pursuance of the various Government Orders has not been taken note in his service book. Subsequently on 10th August, 2009 this Court passed the following order: “In pursuance of the order of this Court dated Ist July 2009, the service book has been produced, but the petitioner has refused to sign stating that revised pay scale in pursuance of the various Government Orders has not been taken note in his service book. He has handed over a copy of his claim in the shape of representation showing as to how his enhancement should have been mentioned. Let the respondents consider the claim of the petitioner and produce the service book again by amendment in the service book, if any. Let a copy of this order be given to Sri Raji Ranjan, learned Standing counsel within 48 hours. List on Ist of September 2009.” 6. The present situation, as stated by the learned counsel for the petitioner, is that nothing happened thereafter and he has not been paid any amount towards the claims which he has sought in the present writ petition. He also drew my attention to para 10 of the counter affidavit wherein the respondents have admitted of not paying salary to the petitioner from 6.8.2007 to 23.8.2007 on the ground of unauthorized absence. 7. Learned Standing Counsel relying averments contained in the counter affidavit submitted that there is no fault on the part of the respondents in not finalizing the matter regarding payment of various dues for which the claim has been made in the present writ petition. 8. Having considered the matter at length and after hearing learned counsel for the parties, in my view, the stand taken by the respondents is wholly flimsy, shallow and has no substance. First of all I come to the allege unauthorized absence. If an employee is unauthorizedly absent, it is open to the competent authority to consider such absence and pass appropriate order in accordance with the rules treating the said period in a particular manner and if any kind of leave are due to such employee, the same can be adjusted accordingly. It is not the case of the respondents that any such order under the rules has been passed by the competent authority in respect to the alleged period of absence vis a vis the question as to whether the same has to be adjusted against any particular kind of leave due or not. The respondents kept silence over the matter. It is not the case of the respondents that any such order under the rules has been passed by the competent authority in respect to the alleged period of absence vis a vis the question as to whether the same has to be adjusted against any particular kind of leave due or not. The respondents kept silence over the matter. Their inaction shows that the same is not bona fide and on the other hand it smacks of, if not malice in fact, than malice in law. 9. The malice in law is quite a distinct factor to malice of fact. The power which is said to have been exercised on account of mala fide may be vitiated on account of either malice in fact or malice in law. In Shearer v. Shields, (1914) AC 808 at Page 813 Viscount Haldane described “malice in law” as under : “A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.” 10. Again in Pilling v. Abergele Urban District Council, (1950) 1 KB 636, Lord Goddard, CJ said that where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account or that they have failed to take matters into account which they ought to have taken into account, the Court to which an appeal lies can and ought to adjudicate on the matter. 11. Lord Esher M.R. in The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras, (1890) 24 QBD 371 at page 375 said : “If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.” 12. Pancras, (1890) 24 QBD 371 at page 375 said : “If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.” 12. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. 13. The Apex Court has summarised “malice in law “ in (Smt.) S.R.Venkatraman v. 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) 14. 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.” 15. In Mukesh Kumar Agrawal v. 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.” 16. In HMT Ltd. and another v. Mudappa and others, JT 2007(3) SC 112, the Apex Court in paras 18 and 19 define 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.” 17. In brief the malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is 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 v. D.B. Belliappa, AIR 1979 SC 429 ; Punjab Electricity Board v. Zora Singh and others, AIR 2006 SC 182; K.K. Bhalla v. State of U.P. and others, AIR 2006 SC 898 ; P. Mohanan Pillai v. State of Kerala and others, (2007) 9 SCC 497 ; M.P.State Corporation Diary Federation Ltd. and another v. Rajneesh Kumar Zamindar and others, (2009) 6 SCALE 17; Swarn Singh Chand v. Punjab State Electricity Board and others, (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar v. State of Andhra Pradesh and others, JT (2009) 12 SC 198. 18. 18. In the present case the respondents by not considering the matter of absence on the part of the petitioner and adjusting the same in accordance with the leave rules are guilty of not exercising powers vested in them and keeping the matter pending for such a long time resulting in denying due amount to the petitioner, if any, without any lawful and valid reason. 19. Now coming to the Provident Fund, Gratuity and Group Insurance, suffice it to say that it was always open to the respondents to make provisional payment, which in accordance with the relevant Government Orders is about 90% of the total amount subject to finalization of such amount, and thereafter further steps could have been taken by the respondents for finalizing the amount. In the present case by not paying a single penny to the petitioner qua the aforesaid claims again show an unjust and malicious exercise on the part of the respondents causing sheer harassment to the petitioner by not paying his lawful dues. 20. The amount of Provident Fund is the money of the employee himself and could not have been retained for such a long time, when an employee has retired. 21. In totality, the inaction and sitting tight over the matter shows total lack of bona fide on their part. 22. Retiral dues of a Government Servant ought to have paid expeditiously and without any further delay. The authorities must always remind themselves that one day they shall also retire and in case they are also harassed by the authorities at that time in power, it would be wholly unchewble to them and such situation must be avoided. This Court as well as the Apex Court time and again have reminded the authorities concerned to look into the matter of retiral benefits of the employees concerned in a most sympathetic and human attitude, but it appears that all such observations have gone in air and in vain. 23. The attitude and conduct of the respondents borne out from the record is nothing but is reprehensible and should be condemned in strongest words. 23. The attitude and conduct of the respondents borne out from the record is nothing but is reprehensible and should be condemned in strongest words. 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 bounty 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 meagre amount payable in the form of retiral benefits. The respondents being a State Government and function through its officers appointed in various department is suppose to discharge his duty strictly in accordance with law 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. 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. 24. In a democratic system governed by rule of law, the Government does not mean a lax Government. 24. 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. 25. Regarding harassment of a Government employee referring to observations of Lord Hailsham in Cassell & Co. Ltd. v. Broome, 1972 AC 1027 and Lord Devlin in Rooks v. Barnard and others, 1964 AC 1129, the Apex Court in Lucknow Development Authority v. 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) 26. The above observation as such has been reiterated in Ghaziabad Development Authorities v. Balbir Singh, JT 2004 (5) SC 17. 27. In the case of Registered Society v. 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”. 28. In the case of Shivsagar Tiwari v. Union of India, (1996) 6 SCC 558 , the Apex Court has held as follows: “An arbitrary system indeed must always be a corrupt one. 28. In the case of Shivsagar Tiwari v. 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.” 29. In the case of Delhi Development Authority v. 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.” 30. In my view, considering all the facts and circumstances, this writ petition deserves to be allowed with exemplary cost. The writ petition is accordingly allowed. The respondents are directed as under: (i) The Competent Authority i.e. the respondent concerned shall pass appropriate order in respect to the period for which the petitioner was absent i.e. 6.8.2007 to 23.8.2007 and his entitlement of salary for the said period in accordance with rules within a period of three weeks from the date of production of certified copy of this order. (ii) Subject to (i) above and in the light of such order, as may be passed by the Competent Authority, as directed above (i), the respondents/Competent Authority shall also calculate the dues of the petitioner towards gratuity, group insurance, leave encashment etc. by determining the same finally within one month thereafter. (iii) The amount, to which the petitioner shall be entitled under direction (ii) above, shall also carry with it an interest @ 10% p.a. which shall commence after one month from the date of retirement of the petitioner till the amount is actually paid. (iv) The amount payable to the petitioner, as directed above, shall be paid within one month after its determination as directed above. (v) The petitioner shall also be entitled to cost which is quantified to Rs.25,000/- against the respondents No. 2, 3 and 4. (iv) The amount payable to the petitioner, as directed above, shall be paid within one month after its determination as directed above. (v) The petitioner shall also be entitled to cost which is quantified to Rs.25,000/- against the respondents No. 2, 3 and 4. The respondent No. 1, however, shall at the first instance would pay the entire amount, as directed above, alongwith the amount of cost to the petitioner but shall be at liberty to recover the amount of cost and interest as would be paid under this order from the concerned authority(s) as are found responsible by it for such delay/inaction after making appropriate enquiry in accordance with law. —————