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Gauhati High Court · body

1997 DIGILAW 29 (GAU)

I. Shikikhe v. State of Nagaland

1997-02-25

H.K.SEMA

body1997
This civil rule has been preferred by a Confederation of All Nagaland State Service Employees Association (CANSSEA) represented by its General Secretary praying inter alia for quashing the Govt order dated 30th December 1995 banning the withdrawal of General Provident Fund subscribed by the Govt servant. 2. I have heard Mr. S. Risom assisted by Mr. GA Shimray. learned counsel for the petitioner as well as Mr.EY Renthungo, learned Junior Govt Advocate. 3. At the outset, Mr. EY Renthungo raised a preliminary objection with regard to the maintainability of the writ petition on the ground that the General Secretary cannot represent the confederation. Secondly, that the confederation is not recognised by the Govt and therefore, the writ petition filed by them cannot be entertained. I am unable to accept the contention of Mr. EY Rehugo because writ under Article 226 is available to a citizens who has right and that right has been infringed. If otherwise, the petitioner has succeeded that they have a right and that right have been infringed, they can definitely approach this Court for a writ under Article 226 of the Constitution of India. Therefore, the contention of Nr. EY Renthungo that the writ is not maintainable is hereby rejected. 4. The facts leading to the filing of the present writ petition is summarily recited. On 30th December, 1995, Officer on Special Duty of Finance Department by WT message directed all the Treasury Officer to stop all Govt payments except salaries and pensions for December, 1995. By another WT message dated 29th September 1994, Annexure C the Under Secretary to the Govt of Nagaland directed all the departments no to forward any applications for special relaxation of GPF. It is stated in the application that the employees represented by this confederation has enough GP Fund credited in their account and despite of having enough fund,they could not withdraw GPF from their account because of this ban. 5. Counter on behalf of the respondents has been filed. It is averred in paragraph 7 of the counter that there has been excess drawal and Govt seriously apprehended that such drawal might land the State Govt in overdraft position thereby inviting embargo from the Reserve Bank of India. It is further stated that the Govt had allowed the release of GPF withdrawal amounting to Rs.109.83 lakhs in the month of March. 1996 itself. It is further stated that the Govt had allowed the release of GPF withdrawal amounting to Rs.109.83 lakhs in the month of March. 1996 itself. Govt has also filed instances as to how excess drawal has been allowed leaving the minus balance of the account of the subscribers during the year 1991-92, 1992-93, 1993-94. Such instances has been shown in Annexure 3. That the appropriate authority has allowed excess drawal of the GP Fund is no fault of the subscribers. The appropriate authority is expected to arrange their house in order. Such excess drawal if any cannot be without the connivance of the Treasury and Accountant General Staff. In fact, when such excess drawal is brought to the notice of the competent authority, the appropriate course would have been to order a thorough probe by an independent agency like CBI because such excess withdrawal of a colossal amount involve huge loss of maney to the public exchequer and definitely it involves a matter of public interest of highest order. Having not made such exercise, it is not open to the appropriate authority to make a blanket ban order effecting other subscribers who may be having enough deposit in their account. 6. GP Fund is not the bounty to be distributed by the Govt to its employees by exercising its discretion. GPF is the money belonging to the employees and the Govt is only its custodian. Therefore, drawal of GP Fund is the right in the hands of the subscriber and that right cannot be curtailed, of course subject to availability of fund in his account. 7. GPF is the money belonging to the employees and the Govt is only its custodian. Therefore, drawal of GP Fund is the right in the hands of the subscriber and that right cannot be curtailed, of course subject to availability of fund in his account. 7. Rule 12 of the General Provident Fund (Central Services) Rules provided advance from the fund under the following circumstances : (a) to pay expenses in connection with the illness, confinement or a disability, including where necessary, the travelling expenses of the subscriber and members of his family or any person actually dependent on him; (b) to meet cost of higher education, including where necessary, the travelling expenses of the subscriber and members of his family or any person actually dependent on him in the following cases, namely : (i) for education outside India for academic, technical, professional or vocational course beyond the High School stage; and (ii) for any medical, engineering or other technical or specialised course in India beyond the High School stage, provided that the course of study is for not less than three years; (c) to pay obligatory expenses on a scale appropriate to the subscriber's status which by customary usage the subscriber has to incur in connection with betrothal or marriages, funerals or other ceremonies: (d) to meet the cost of legal proceedings instituted by or against the subscriber, any member of his family or any person actually dependent upon him, the advance in this case being available in addition to any advance admissible for the same purpose from any other Govt source. (e) to meet the cost of the subscriber's defence where he engaged a legal practitioner to defend himself in an enquiry in respect of any alleged official misconduct on his part. (f) to meet the cost of plot or construction of a house of flat for his residence or to make any payment towards the allotment of plot or flat by the Delhi Development Authority or a State Housing Board or a House Building Co-operative Society. 8. Further Rule 15 of the rules deals with withdrawal from the funds for the exigency stated therein. 8. Further Rule 15 of the rules deals with withdrawal from the funds for the exigency stated therein. Rule 15B further allow the Govt servants after completion of 10 years of service or within 10 years before the date of retirement of superannuation to withdraw the amount of subscription thereon standing to the credit of subscriber for one or more of the following purposes : (a) building or acquiring a suitable house or ready-built flat for his residence including the cost of the site: (b) repaying an outstanding amount on account of loan expressly taken for building or acquiring a suitable house or ready built flat for his residence; (c) purchasing a house-site for building a house thereon for his residence or repaying any outstanding amount on account of loan expressly taken' for his purpose; (d) reconstructing or making additions or alterations of a house or a flat already owned or acquired by a subscriber; (e) renovating, additions or alterations or unkeep of an ancestral house at a place other than the place of duty or to a house built with the assistance of loan from Govt at a place other than the place of duty; (f) constructing a house on a site purchased under clause (c). 9. A fascicule reading of Rule 12 and Rule 15, it clearly appears that the subscriber can claim a temporary advance from the fund under Rule 12 which is refundable. But provision under Rule 15A and B is aimed at to give a subscriber pre-retiral benefits which is non refundable. It is a common knowledge that the Govt servants conserve fund in the form of GPF to meet the' eventualities and unforeseen circumstances as enjoined under Rule 15 and Rule 12 of the rules. If the subscriber is denied the right to withdraw the GPF (of course subject to the availability of fund); it would amount to denial of the rights. When they have a right and that right has been infringed, they can assert that right by filing application under Article 226 of the Constitution. 10. It is further averred in paragraph 4 of the counter of the respondents that during the year 1995-96, Govt have released Rs. 17.14 crores as against Rs. 11.17 crores released in 1994-95. When they have a right and that right has been infringed, they can assert that right by filing application under Article 226 of the Constitution. 10. It is further averred in paragraph 4 of the counter of the respondents that during the year 1995-96, Govt have released Rs. 17.14 crores as against Rs. 11.17 crores released in 1994-95. When the GPF amount is held to be the right in the hands of the Govt employees, releasing of such amount by the Govt from time to time limiting/curtailing the rights of the subscribers is a deprivation! of the rights. It is already observed that the GP Fund has become the right in the hands of the subscriber. If that is so, the liberty has to be given to the subscriber to draw that amount at the time of need as visualised under Rule 12 and 15, subject to the availabilityof fund in his or her credit. Limiting of that right by releasing fund from time to time by the Govt would amount to infringement of the right of the hands of the subscriber. As quoted above, Rule 12 and Rule 15 entitled the Govt servants for advance and withdrawal respectively. The rule as admitted by the respondents in their counter is applicable in the State of Nagaland in toto. There is no other rule framed by any appropriate authority contrary to General Provident Fund (Central Services) Rules. Therefore, what is allowed by the rules cannot be taken away by the executive order. The rule has to be interpreted as it is. 11. Instances has brought to-my notice that Govt by its order dated 9th December 1996 released Rs.9 lakhs to the Health & Family Welfare for the drawal of GP Fund. (Annexure R3 of the rejoinder). This would clearly show that the appropriate Govt is not allowing the individual subscriber to draw the GP Fund as enjoined under Rule 12 and 15. At the same time, the excess withdrawal can be taken care of by the subscriber by satisfying the competent authority about the amount standing to his credit in the account with reference to the latest available statement of the account together with the evidence of subsequent contribution on the basis of which the appropriate authority can accord sanction. 12. Not. that this Court is not aware of the excess withdrawal of the fund. 12. Not. that this Court is not aware of the excess withdrawal of the fund. In fact, this Court is well aware and taking a very serious view on this. But then, it is the competent authority to take step to stop such evil practices by imposing exemplary punishment after proper inquiry when such instances has been brought to the notice of the competent authority so that its recurrence is stopped. Having not exercised such power, a blanket banning or limiting cannot be issued depriving the subscriber who are having sufficient account in their credit. 13. I am also constraint to note that at the time of hearing of this writ petition, mention has been made by the learned Junior Govt Advocate that excess withdrawal is not possible without the connivance/conspiracy of the AG Department as well as Treasury Department because the amount is sanctioned on the basis of deposit statements furnished by the AG office. It is further mentioined by learned Junior Govt Advocate that there are instances in which wrong entries are maintained so that in the account of some Govt officer are shown inflated account and some of the subscriber although the subscriber are high, the figure does not reflect in their account correctly because of manipulation. To say the least, the Court is taking a very serious view on this and a time may come that this Court has to summon the appropriate authority of Accountant General to this Court and once such situation arised, it may lead to unpleasant circumstances. By now. it is well settled principle of law that the public authority posses power to use for the public good not to abuse the power. AG staff is definitely a public authority and it is expected that they use their power for public good. 14. Having said enough, this petition is disposed with the following directions: (a) Second respondent is directed to lift the ban with regard to withdrawal/ advance of GPF within a week from the date of receipt of this order. (b) The GPF withdrawal/advance shall be allowed only after submission of statements with regard to the availability of the amount in the credit of the subscriber. (c) Every Treasury Officer shall, before honouring of withdrawal/advance of GPF insist that latest statement showing the accounts in the credit of the subscriber are made available before him. (b) The GPF withdrawal/advance shall be allowed only after submission of statements with regard to the availability of the amount in the credit of the subscriber. (c) Every Treasury Officer shall, before honouring of withdrawal/advance of GPF insist that latest statement showing the accounts in the credit of the subscriber are made available before him. (d) The Accountant General shall see that the latest statements are issued correctly and on the basis of actual subscription subscribed by the subscriber. (e) Every Head of the Department shall also see that before they forward the application of GP Fund, withdrawal/advance the latest statement indicating the availability of money in the credit of the subscriber is made available. 15. The orders dated 30th December 1995; 30th January 1996 and 29th September 1994 at Annexure A, B and C is accordingly quashed in so far with regard to the withdrawal/advance of GP Fund. A copy of this order shall be sent to Accountant General, all the Head of the Departments and the Treasury Officer. With the aforesaid direction, this civil rule is allowed. No costs.