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Madhya Pradesh High Court · body

2013 DIGILAW 1025 (MP)

Kusum Soni v. State of M. P.

2013-08-29

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi, J. 1. The petitioner, a widow of an employee of the State Government, has approached this Court alleging that after the death of her husband, she was informed that there was a negative balance in the General Provident Fund (herein after referred to as 'G.P.F.') account of the husband of the petitioner and the said amount was to be recovered from the terminal dues to be paid to the petitioner. That being so, a recovery has been intimated to the petitioner vide the impugned order. It is contended that if there was any minus balance in the General Provident Fund of the husband of the petitioner, no further disbursement should have been made to the husband of the petitioner. On the other hand, the said amount should have been recovered from the salary of the husband of the petitioner. It is contended that in view of the law laid-down by the Apex Court in the case of Sahib Ram vs. State of Haryana and others, 1995 Supp. (1) SCC 18 nothing has to be recovered from the petitioner and as such the respondents are liable to pay the amount of G.P.F. of the husband of the petitioner to her. The recovery made from the terminal dues be refunded to the petitioner. A return has been filed by the respondents contending that the husband of the petitioner, by name Ramnath Soni, was working as an Accountant. It was found that there was minus balance in the General Provident Fund of said person and accordingly information was sent that the said amount was to be recovered from the holder of the G.P.F. account. However, the departmental authorities have not taken any steps in that respect at the relevant time for simple reason that the husband of the petitioner himself was working as Accountant and he has manipulated the records. Ultimately, when the death of the husband of the petitioner was reported, after examining the records it was found that recovery was to be made including the penal interest and since the penal interest itself was about Rs. 4,918/- per month, therefore, recovery was to be made from whatever dues to be paid to the petitioner. Information in this respect was sent but since action was not taken, the claims of the petitioner have been withheld. 4,918/- per month, therefore, recovery was to be made from whatever dues to be paid to the petitioner. Information in this respect was sent but since action was not taken, the claims of the petitioner have been withheld. In view of this, it is contended that the petitioner would not be entitled to any relief as the law laid-down by the Apex Court in the case of Sahib Ram (supra) is not only distinguishable, the same has been watered down in subsequent years. 2. A rejoinder has been filed by the petitioner contending inter alia that dues are to be recovered under the provisions of the Madhya Pradesh Civil Services (Pension) Rules, 1976 and in terms of the specific provisions made under the Rules aforesaid if any recovery whatsoever is to be made, the procedure laid-down under the Rules has to be followed. The amount of gratuity or pension is not attachable for such recovery unless an opportunity of hearing is granted to such a person. That being so, it is contended that the action on the part of respondents is per se illegal. 3. An additional reply has been filed by the respondents and in terms of order dated 19.3.2012 an additional affidavit of the Officer-in-Charge of the respondent No. 2 has been filed. The statement of the G.P.F. account of the husband of the petitioner has been placed on record. A circular of the State Government has also been placed on record indicating as to how recovery of the negative balance is to be made and under what provision, interest is required to be imposed. It is reiterated that because of these reasons and the provisions of the G.P.F. Rules, petitioner would not be entitled to any relief. An additional affidavit has been filed by the petitioner stating that she was informed by the Principal of the School that an amount of Rs. 5,71,003/- was to be recovered as negative balance in G.P.F. from the petitioner and in case such an amount is deposited, total claim of Rs. 4,94,981/- towards the death-cum-retirement gratuity, leave encashment, employees group insurance scheme and arrears of dearness allowance would be paid to the petitioner. Thus, it is contended that because of the aforesaid reasons and improper action of respondent No. 2, such claims of the petitioner are withheld. 4. Heard learned Counsel for the parties at length and perused the record. 5. 4,94,981/- towards the death-cum-retirement gratuity, leave encashment, employees group insurance scheme and arrears of dearness allowance would be paid to the petitioner. Thus, it is contended that because of the aforesaid reasons and improper action of respondent No. 2, such claims of the petitioner are withheld. 4. Heard learned Counsel for the parties at length and perused the record. 5. It is not at all in dispute that the responsibility of maintaining the G.P.F. account of an employee of the State Government is on the respondent No. 2, the Accountant General. At the same time, the Controlling Authority, i.e. the Head of the Office, exercising the drawing and disbursing powers, is also responsible to see that the G.P.F. account of employees is properly maintained. The amount towards the contribution of an employee in G.P.F. is to be deducted from his salary and said amount is credited in the account maintained by respondent No. 2 by the Head of the Office. At the same time, under the Madhya Pradesh General Provident Fund Rules, the Head of Office is responsible to make authorization of withdrawals, either temporary or part final from the G.P.F. account of the employee concerned working under him. Even if the husband of the petitioner was working as Accountant, he was not the drawing and disbursing authority. As has been indicated in the documents filed by the respondents with their additional affidavit, the negative balance in the general provident fund account of the husband of the petitioner started in the year 1976-77 when as against the total deposit of Rs. 430/-, sanction to withdraw Rs. 1,300/- was granted by the Head of Office. If this fact came to the notice of respondent No. 2, it was the responsibility of respondent No. 2 to take up action immediately so as to make the account good. In fact the recovery should have been directed from the husband of the petitioner at that time. However, till the year 1977-78 again though some amount was contributed by the husband of the petitioner out of his salary towards the G.P.F. but the minus balance started because of the withdrawal permitted by the Head of Office. However, the said amount was credited back again and the minus balance started in the year 1979-80 when again against the deposit, a higher amount was paid as advance to the husband of the petitioner. However, the said amount was credited back again and the minus balance started in the year 1979-80 when again against the deposit, a higher amount was paid as advance to the husband of the petitioner. This negative balance further increased in the year 1980-81 when the withdrawal was permitted by the respondents. There is nothing indicated as to why immediate steps were not taken at that time to make the default or negative balance good. Till the year 1987-88 it appears that contributions were regularly made and ultimately the entire minus balance was adjusted. The statement further indicates that serious lapses were committed in maintaining the account of the husband of the petitioner and subsequently, huge amount was permitted to be withdrawn, such as Rs. 4,000/-,Rs. 22,950/-, Rs. 20,000/-, Rs. 25,350/-, Rs. 5,000/-, Rs. 8,000/-, Rs. 36,000/-, Rs. 27,600/-, Rs. 47,000/- and Rs. 5,600/-. How such withdrawals were permitted, is not known. How the interest was imposed is also not clear. It is not the case that husband of the petitioner was not making deposits in the G.P.F. From the statement it is clear that there were regular deposits made by the husband of the petitioner. That being so, it appears that calculation of interest is not properly made by the respondents. 6. From the documents placed on record by the petitioner it is clear that the information with respect to the minus balance was not timely given and this has resulted in accumulation of negative balance and a recovery of huge amount. If lapses were committed by respondent No. 2 in not maintaining the account, shelter of Rule 14(7) of the G.P.F. Rules aforesaid cannot be taken for the purposes of imposing penal interest. The husband of the petitioner alone was not responsible for the loss caused. In fact what is to be worked out is the amount credited by the husband of the petitioner in the G.P.F. account and by adding interest as prescribed under the Rules, how much would be the amount totally credited in the G.P.F. account of the husband of the petitioner. Out of the said amount, the amount already withdrawn be adjusted and rest of the amount be recovered from the dues payable to the petitioner, if after calculation it is found that any amount is required to be recovered from the petitioner. Out of the said amount, the amount already withdrawn be adjusted and rest of the amount be recovered from the dues payable to the petitioner, if after calculation it is found that any amount is required to be recovered from the petitioner. This is being observed in the light of the law laid-down by the Apex Court in the case of Chandi Prasad Uniyal and others v. State of Uttarakhand and others 2012 (135) FLR 161 (SC). The Apex Court has not completely overruled the law laid-down in case of Shyam Babu Verma and others v. Union of India and others, 1994 (68) FLR 812 (SC) and Sahib Ram (supra), rather has taken into consideration the law laid-down in case of Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : 2009 (120) FLR 30 (Sum.) and has held in Para 12, 13, 14 and 15 of order in Chandi Prasad Uniyal (supra), which reads thus: 12. Later, a three-Judge Bench in Syed Abdul Qadir case, after referring to Shyam Babu Verma, Col. B.J. Akkara etc. restrained the department from recovery of excess amount paid, but held as follows: 59. Undoubtedly, the excess amount that has been paid to the appellants teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. (Emphasis added) We may point out that in Syed Abdul Qadir case such a direction was given keeping in view the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them. 13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, than only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy. 14. We are concerned with the excess payment of public money which is often described as "tax payers' money" which belongs neither to the officers who have effected over-payment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the Government officers may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 15. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered. 7. The difficulty which a widow would be facing in these hard financial days to maintain the family on account of sudden death of bread earner is required to be considered. It is seen that the death of the husband of the petitioner has taken place on 10.11.2003 and still she is litigating for grant of terminal dues. It will be open to the respondents-authorities to assess the loss, if any caused on account of excess withdrawals from the G.P.F. account of the husband of the petitioner. For that, erring officers are required to compensate and the respondent-State would be free in conducting enquiry in that respect fixing the liability of such officers, who have authorized over-payment of the G.P.F. amount to the husband of the petitioner without verification of the record. 8. Looking to the aforesaid, let the aforesaid exercise be done within a period of four months from the date of order and all the terminal dues of the petitioner be settled and paid to her within the aforesaid period. The writ petition is disposed of accordingly. However, there shall be no order as to costs.