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2012 DIGILAW 208 (ORI)

Braja Kishore Sahoo v. State of Orissa

2012-04-19

M.P.MISRA

body2012
JUDGMENT M. P. MISRA, MEMBER (JUDICIAL) 1. The applicant has come up with this Original Application praying for a direction to respondent no.3 to issue appropriate revised authorised letter in favour of the applicant as per Annexure-1 to enable the applicant to make final withdrawal of the amount of Rs. 3,19,469/- from his G.P.F. account. 2. The case of the applicant as revealed in his Original Application may be described in brief as follows: The applicant had entered into govt. service as an Assistant Engineer in the Irrigation and Power Department and after successfully completing his service period retired from govt. service on superannuation w.e.f. 30.6.2004. After his retirement he made correspondences to the respondents for his pensionary and other retiral dues. The applicant was supplied with a detailed statement of his G.P.F. account dated 16.7.2004 at Annexure-' 1 for claiming withdrawal of the deposit. The accounts statement at Annexure-1 clearly indicates that the closing balance of the P.F. Account of the applicant on the date of his retirement was Rs. 3,19,469/-. On the basis of information at Annexure-1 the applicant made several applications at Annexure-2 series to respondent no.3 for final withdrawal of the amount available in his G.P.F. Account. But the Accounts Officer in the establishment of respondent No.3 opened unnecessary correspondence with different Drawing and Disbursing Officers of the applicant relating to information as old as 20 years. Finally respondent no.3 in his letter dated 28.10.2005 at Annexure-3 intimated that the applicant was authorized to draw only a sum of Rs, 91,096/- towards final withdrawal from his G.P.F. account. It was disclosed in the said letter (Annexure-3) that the applicant's closing balance in the year 1983-84 was inflated by a sum of Rs. 27,212/- and this amount along with interest thereon comes to 2,61,440/-. It was also intimated to the applicant that during the year 1996-97 a sum of Rs. 3,500/- was excess allowed towards interest which was deducted along with interest amounting to Rs. 7954/-. Thus the total amount deducted was Rs. 2,69,394/- reflecting the balance of Rs. 91,096/- to be paid to the applicant. Being faced with financial hardship the applicant was forced to receive Rs. 91,096/- under protest and thereafter again wrote to respondent no.3 on 10.1.2006 at Annexure-5. In response to the letter of the applicant respondent No.3, sent a letter on 12.12.2005 at Annexure-7 addressed to the applicant justifying the deduction. 91,096/- to be paid to the applicant. Being faced with financial hardship the applicant was forced to receive Rs. 91,096/- under protest and thereafter again wrote to respondent no.3 on 10.1.2006 at Annexure-5. In response to the letter of the applicant respondent No.3, sent a letter on 12.12.2005 at Annexure-7 addressed to the applicant justifying the deduction. The applicant moved this Tribunal in O.A. No. 109/2006 challenging the illegal action of the respondents. This Tribunal by its order dated 9.2.2006 disposed of the O.A. with a direction to respondent No.3 to give reply to the representation of the applicant and only after that order of the Tribunal the respondent No. 3 furnished a copy of the letter dated 12.12.2005 to the applicant at Annexure-7 dated 14.3.2006. On receipt of the letter of the respondent no.3 the applicant again filed O.A. No. 555/2006 in this Tribunal. This O.A. was disposed of by the order dated 11.5.2006 at Annexure-8 with a direction to dispose of the representation of the applicant by a speaking order. Though the applicant had withdrawn a sum of Rs. 19,200/- from his G.P.F. account in the year 1983-84 the voucher relating to such withdrawal was received by the office of the applicant during the very year and it is respondent no.3 who was responsible for not taking such withdrawal into account in the appropriate column while issuing statement of account for the year. The respondent No.3 therefore again reopened the issue long after 20 years. Similarly payment of Rs. 3,500/- excess towards interim withdrawal made in the year 1996-97 is also due to the negligence of respondent no.3 and for that the applicant should not be allowed to suffer 8 years thereafter. 3. Respondent No. 3 in his counter while challenging the maintainability of the O.A. has pleaded as follows: The annual account slip issued by the respondent no.3 every year is only provisional and the figures mentioned therein are not final. The applicant, therefore cannot base his claim on the annual account slip at Annexure-1. 3. Respondent No. 3 in his counter while challenging the maintainability of the O.A. has pleaded as follows: The annual account slip issued by the respondent no.3 every year is only provisional and the figures mentioned therein are not final. The applicant, therefore cannot base his claim on the annual account slip at Annexure-1. As per the procedure, on receipt of the application of the applicant for final withdrawal from his G.P.F. his G.P.F. account starting from the month when he joined the Provident Fund (P.F.) till stoppage of his subscription was verified and during such verification it was found out that the G.P.F. account of the applicant for the year 1983-84 was maintained in two different ledger guards in the file. The closing balance in the first ledger guard was shown as Rs. 40,789/- and in the 2nd ledger guard it was shown (-) Rs. 13,521/- as the applicant had availed a non-refundable advance of Rs. 19,200/- during August, 1983. Unfortunately the first ledger in which the amount was wrongly mentioned as Rs. 40,789/- was referred to in the subsequent years/years as a result of which this mistake continued for years and was finally detected after the retirement of the applicant. Similarly the applicant had withdrawn a sum of Rs. 50,000/- from his G.P.F. during September, 1996. Though this amount was debited from the available balance, the interest thereon was not deducted which was a clerical mistake. Due to non-deduction of interest, the excess amount wrongly shown in the account of the applicant was inflated from year to year getting inflated and resulted in an excess amount of Rs. 7,944/- in the applicant's account. Since respondent no.3 is only a care taker and account keeper, it is his duty to maintain the accounts of the subscriber correctly and if one subscriber draws any amount not due to him another subscriber will correspondingly loose. The applicant had already been disbursed the amount due to him and nothing remains in his balance to be paid to him. 4. Respondent No.1 in its separate counter has stated that this is a matter between the applicant and respondent no.3 and respondent no.1 is no way connected with the matter. The applicant had already been disbursed the amount due to him and nothing remains in his balance to be paid to him. 4. Respondent No.1 in its separate counter has stated that this is a matter between the applicant and respondent no.3 and respondent no.1 is no way connected with the matter. This Tribunal by order dated 6.5.2008 disposed of the O.A. directing the applicant and the respondent no.3 to meet on an appointed date by mutual consent and respondent no.3 would cause the relevant information along with the ledger account to be placed before the applicant to explain how the balance was wrongly arrived at. The applicant was given the liberty to take the assistance of a professional accountant or a lawyer if he so desired. This order was challenged by the applicant in the Hon'ble High Court of Orissa in W.P.(C) No. 17653/2008. Their Lordships by order dated 25.3.2010 set aside the order of this Tribunal and remitted the matter back for fresh adjudication and that is how the matter is now before me. 5. Learned counsel for the applicant strenuously argued that the reduction of the applicant's claim from Rs. 3,19,469/- to Rs. 91,096/- would amount to recovery and such recovery is not permissible without a departmental proceeding. I am not impressed by such an argument. Recovery as a punishment requires a departmental proceeding. In the instant case it is not the case of recovery. It is merely a case of correction of the books of account maintained in the office of the respondent no.3. 6. Learned counsel for the applicant relied on the annual accounts statement at Annexure-1 and argued that once such account slip was issued a right accrued in favour of the applicant and the respondent no.3 was not justified in changing his stand. The instructions to subscribers given on the reverse page of the accounts slip negatives such claim of the applicant. Instruction no.5 lays down that the closing balance is subject to adjustment of missing debit and credit, if any, and interest thereon. If the applicant relies on the annual account statement at Annexure-1 he is also bound by the instructions given on the reverse page. Instruction No.3 casts a duty on the government servant to ensure that all advances withdrawn by the subscribers during the year (temporary withdrawals or part final withdrawals) are exhibited in the accounts statement. If the applicant relies on the annual account statement at Annexure-1 he is also bound by the instructions given on the reverse page. Instruction No.3 casts a duty on the government servant to ensure that all advances withdrawn by the subscribers during the year (temporary withdrawals or part final withdrawals) are exhibited in the accounts statement. If there is any omission in the withdrawal column it is the duty of the subscriber to bring the omission to the notice of the office of the respondent no. 3. The applicant being a responsible government servant was duty bound to intimate the respondent no.3 about the omissions of his withdrawals in the withdrawal column. A wrong doer cannot be allowed to take advantage of his own wrong doings. Rule 36(2) of the Orissa G.P.F. Rules also casts a duty on the subscriber to satisfy himself as to the correctness of the annual statement and error should be brought to the notice of the Accounts Officer within a period of three months from the date of receipt of the statement. Admittedly the applicant did not bring the error in question to the notice of accounts officer. 7. Rule 70(A) of O.C.S. (Pension) Rules, 1992 lays down that any over-payment to a retired Govt. employee or his/her family on account of final payment of General Provident Fund, Gratuity, Pension and Temporary Increase detected before or after the retirement, not being legally due to such retired employee or his/her family, shall be deemed to be government dues and shall be recovered from his/her gratuity and/or Temporary Increase on pension. Thus had it been a case where entire amount of Rs. 3,19,469/- were paid to the applicant, he would have been bound to refund the excess amount as per the O.C.S. (Pension) Rules, 1992. 8. The applicant while applying for final payment of his G.P.F. dues had given undertaking to the following effect: "I do hereby give my free and full consent that if any over payment made to me is detected while in service or after my retirement in respect of my G.P.F. Account or on account of gratuity, pension and Temporary Increase on pension etc. the same shall be recovered from my pay and allowances/Leave salary/General Provident Fund/ Pension/Commuted Value of Pension/Temporary Increase on Pension/ Interim Relief or Gratuity etc. payable to me or to my family at any time." 9. the same shall be recovered from my pay and allowances/Leave salary/General Provident Fund/ Pension/Commuted Value of Pension/Temporary Increase on Pension/ Interim Relief or Gratuity etc. payable to me or to my family at any time." 9. The applicant cannot now wriggle out of his own undertaking. It is not the case of the applicant that he had not availed of non-refundable advance of Rs. 19,200/- during August 1983. It is also not his case that he had not withdrawn a sum of Rs. 50,000/- from his G.P.F. account during September 1996. On the other hand the applicant in Para 6.15 of his O.A. categorically admitted to have withdrawn Rs. 19,200/- as alleged by respondent no.3. He also admitted that the column for mentioning the opening balance was not filled up in the account slip supplied to him for the year 1983-84. Since the applicant noticed this omission it was his duty to immediately bring it to the notice of respondent no.3. The wrong account slip at Annexure-1 was issued, simply because of missing debits from the accounts of the applicant. Therefore, the applicant was not legally entitled to the amounts debitable from his account towards these missing entries and the interest accrued thereon. Thus, this is not a case of any financial loss to .the applicant. It is simply a case of correction of a statement of account to prevent undue gain to the applicant. Such undue gain would have caused undue loss to State exchequer. The office of respondent no.3 only maintains accounts and does not handle cash. Any mistake in the account can be corrected as soon as noticed. There is no period of limitation for correction of such mistakes. The applicant, therefore is not justified in saying that the respondent no.3 was not entitled to correct the mistake after 20 years. 10. It was argued by the learned Special Counsel for respondent no.3 that Rule 32 of the Orissa G.P.F. Rules casts a duty on the Accounts Officer of office of the respondent no.3 to verify the final payment application with the ledger account and then to issue authority slip for final withdrawal. Therefore the applicant's application for final withdrawal was verified and during such verification the omissions referred to earlier were detected. Therefore the applicant's application for final withdrawal was verified and during such verification the omissions referred to earlier were detected. Thus there was nothing wrong in the conduct of the Accounts Officer in verifying accounts ledger relating to the applicant's G.P.F. account right from date on which the account was opened till the date on which the applicant stopped paying subscription. I have already discussed how the applicant was also guilty of omission to bring the error to the notice of respondent no.3 even though he had noticed it in the year 1983-84. The respondent no.3 in his counter has given a detailed explanation to show how the amount of Rs. 19,200/- in the year 1983-84 became Rs.2,61,440/-. The counter also explains how the non-refundable advance of Rs. 3,500/- availed of in the year 1997-98 became Rs. 7,954/- by the time when the applicant retired from Government service. The applicant does not dispute the correctness of the calculation. The counter is quite clear as to how the mistake occurred and the amount to be deducted from the accounts slip was arrived at. The amount now claimed by the applicant, therefore, clearly does not belong to him and he is not likely to suffer any loss, if the said amount is not paid to him. 11. In view of my above findings the O.A. is found to devoid of any merit and is accordingly dismissed. O.A. dismissed.