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2013 DIGILAW 40 (CHH)

MEENA KUMARI TONDEY v. STATE OF C. G.

2013-01-24

Manindra Mohan Shrivastava

body2013
ORDER 1. Heard. The petitioner who is the mother of deceased-employee, Dr. Kalpana Tondey has filed this petition assailing the correctness and validity of direction dated 7-6-2006 (Annexure P-10) issued by respondent No.2, whereby payment of GPF has been withheld on the ground of pendency of criminal appeal. 2. Quintessential facts necessary for decision of the petition are that Late Dr. Kalpana Tondey was appointed as Assistant Surgeon in the service of the State Govt. in the Department of Health. It was alleged that she was murdered by her husband-Dr. Anil Kumar Singh/respondent No.6. Dr. Anil Kumar Singh faced trial for alleged murder of his wife-Late Dr. Kalpana Tondey. Vide judgment of conviction and order of sentence dated 31-7-2000 passed by 1st Additional Sessions Judge, Raigarh, in S.T. No. 81/99, Dr. Anil Kumar Singh was held guilty for commission of offence under Sections 302 and 498 of the IPC and sentenced to life imprisonment. Aggrieved by the said judgment, Dr. Anil Kumar Singh preferred criminal appeal before this Court, registered as Cr. A. No. 2007/2009. The said appeal is still pending. At the time of entry into service, Late Dr. Kalpana Tondey filled-up nomination form for the purpose of GPF, in which she nominated her father B.P. Tondey and mother Smt. Meena Tondey vide Annexure P-2. Till the death of Late Dr. Kalpana Tondey, this nomination subsisted and was never cancelled. 3. After unfortunate death of Dr. Kalpana Tondey, her parents claimed release of various dues, which included OPF, Insurance Coverage, arrears of salary, leave encashment etc. The Chief Medical & Health Officer allowed the amount of Group Insurance of Rs. 1,20,000/-, arrears of pay of Rs. 24,208/-as also encashment towards earned leave amounting to Rs. 25,062/- to be released vide different sanctions orders dated 14-1-2000, dated 7-8-2009 and 3-1-2000 placed on record collectively as Annexure P-4. 4. When claim for release of provident fund amounting to Rs. 1,23,343/-was raised, it was not released. A legal notice dated 16-2-2004 was given which was not paid any heed to. Thereafter, N.P. Tondey (since deceased), father of the deceased employee filed a writ petition before this Court, registered as W.P. No. 972/05, for issuance of directions for release of gratuity amount and other amounts due and payable on account of death of Late Dr. Kalpana Tondey. On 3-2-2006, this Court issued a direction for release of the amount due and payable. Kalpana Tondey. On 3-2-2006, this Court issued a direction for release of the amount due and payable. Thereafter, on 24-2-2006, Sr. Account Officer in the office of respondent No.2, issued authorisation letter for release of GPF amount of Rs. 1,23,348/- in compliance of the order of the High Court. Thereafter, the Chief Medical and Health Officer vide his memo dated 24-5-2006 (Annexure A-8), required father of deceased employee B.P. Tondey to furnish undertaking. An undertaking was also submitted by B.P. Tondey (Annexure P-9). 5. While the matter stood thus, writ petition filed by the B.P. Tondey was dismissed as withdrawn vide order dated 26-6-2006 (Annexure P-11). In the meanwhile, the official respondent No.2 issued a letter on 7-6-2006 (Annexure P-10), impugned in this writ petition, directing the Chief Medical and Health Officer, Raigarh to return the authorisation letter for release of GPF amount on the ground that till the decision of criminal appeal filed by husband of the deceased employee, payment be withheld. It is this decision of respondent No.2, which is under challenge in this writ petition. 6. Learned Counsel for the petitioner contends that once a valid nomination was made by deceased-Dr. Kalpana Pandey in favour of her parents, which included the petitioner-Smt. Meena Tondey also, she is entitled to receive the amount of GPF as a valid nominee because nomination still subsists, as it has not become invalid either by operation of law or on account of any other contingency, recognised under the law. According to him, even after marriage of Late Dr. Kalpana, there was no application made by her cancelling her nomination which was earlier made in favour of the petitioners. In fact, substantial amount has already been paid, but it is only on account of direction issued by respondent No.2 that the amount has been withheld which is not permissible under the law. 7. Per contra, submission of learned Counsel for respondent No.2 is that when the deceased-employee had filled-in her nomination at the time of entry into service, she had no family, therefore, after she married Dr. Anil, her nomination stood automatically cancelled, as nomination is permissible only in favour of family members and not outside. The earlier nomination, therefore, could not be enforced nor could be made a basis to claim GPF. Anil, her nomination stood automatically cancelled, as nomination is permissible only in favour of family members and not outside. The earlier nomination, therefore, could not be enforced nor could be made a basis to claim GPF. Referring to provision contained in Rule 8 of the M.P./C.G. General Provident Funds Rules, 1955 (for short "the Rules of 1955") learned Counsel for respondent No.2 contended that the nomination made in favour of parents by deceased employee at the time of entry into service was in the circumstance that she was not married, but, as soon as she married, the nomination could not subsist any more and as she had not given any further nomination, none of the parties can be released the amount of GPF. He further submits that the entitlement of the husband to receive GPF would be decided only after decision of the criminal appeal pending in the High Court and, therefore, respondent No.2 has rightly decided to withheld the said amount till the decision of the appeal. 8. Other respondents have also supported and adopted the submission made by learned Counsel for respondent No.2. 9. The facts which are not in dispute are that Late Dr. Kalpana Tondey joined Govt. service as Medical Officer and at that time she was not married. The question, therefore, which arises for consideration is whether the nomination in favour of father and the mother was in accordance with law or not. 10. Nominations for the purpose of receiving Provident Fund are governed by the provisions contained in the Rules of 1955 framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Rule 8 of the Rules of 1955 provides for nomination. Under this rule, a subscriber to GPF is obliged to send to the Head of Office, a nomination conferring on one or more persons the right to receive the amount that may stand to his credit in the fund, in the event of his death before that amount has become payable or having become payable has not been paid. The proviso added to the said provision, however, provides that if at the time of making the nominations, the subscriber has a family, the nomination shall not be in favour of any person or persons other than the members of his family. The proviso added to the said provision, however, provides that if at the time of making the nominations, the subscriber has a family, the nomination shall not be in favour of any person or persons other than the members of his family. The aforesaid requirement of nomination, therefore, provides that where at the time of nomination, subscriber has a family, the nomination cannot be in favour of any person or persons other than the members of his family. Word "family" has been defined under Rule 2 (1) (c) of the Rules of 1955. In the case of a female subscriber, family would mean the husband and children of the subscriber, and the widow or widows and children of a deceased son of the subscriber. Therefore, if at the time of making a nomination, deceased had a family, nomination could be made only in favour of the family. It has been stated before this Court that the deceased married only after entering into service. Nomination was filled-up by the deceased when she was not married. Therefore, there was no occasion to nominate in favour of member of "family" as defined under Section 2(1) (c) of the Rules of 1955. As in the present case, at the time of entering into service, there were no member of the "family" as defined under the Rules, there was no impediment to provide nomination in favour of persons other than the members of the family as defined under the Rules. This would be clear from the plain language of clause (a) of sub-rule (1) of Rule 8 of the Rules of 1955, in which, words "one or more persons" have been used. Therefore, a rational, fair and logical interpretation of the aforesaid provision would only mean that at the time of making nomination, female employee may nominate one or more persons if members of the family as defined under Rule 2 (1) (c) of the Rules of 1955 was not in existence at the time of making nomination. Therefore, the first contention of learned Counsel for the respondent deserves to be rejected. 11. The next point which needs to be examined by this Court is whether under the scheme and rules, nominations made by the deceased employee become automatically invalid either by operation of law or by conduct of parties. 12. Therefore, the first contention of learned Counsel for the respondent deserves to be rejected. 11. The next point which needs to be examined by this Court is whether under the scheme and rules, nominations made by the deceased employee become automatically invalid either by operation of law or by conduct of parties. 12. Sub-rule (5) of Rule 8 of the Rules of 1955 exhaustively provides for the contingency when nomination would become invalid. It does not include a contingency where female subscriber after entry into service contacts marriage, so as to render the earlier nomination invalid. The Rules of 1955 nowhere provide that in case of marriage after entry into service, earlier nominations will automatically become invalid. There is no reason for this Court to interpret the provisions so as to mean that the moment the Govt. servant marriages, earlier nominations would be impliedly treated as invalid. None of the provisions in the Rule either expressly or by necessary implication, warrant such conclusion to be drawn. There is no factual foundation pleaded by respondent in the reply which would attract aforesaid provision contained in sub-rule (5) of Rule 8 of the Rules of 1955. Moreover, as against specific averments made in the petition along with the nomination form annexed as Annexure P-2, respondents have not come out with any other material to show that at any point of time, the deceased employee, after her marriage, cancelled her nomination and nominated some other person being member of her "family" as defined under Rule 2 (1) (c) of the Rules of 1955. 13. In view of above discussions, in the considered opinion of this Court, on the date of death of Dr. Kalpana Tondey, nomination for the purpose of provident fund made by her in favour of her father and mother was valid and enforceable. During the pendency of this petition, father, namely- B.P. Tondey, one of the petitioners has died and this petition is now being prosecuted only by the mother of the deceased-Smt. Meena Kumari Tondey. 14. The reasons assigned for withholding the release of provident fund is that criminal appeal filed by husband/respondent No.6 is pending in the High Court. The said ground for withholding release of provident fund is not provided under any of the provision of the Rules of 1955. 14. The reasons assigned for withholding the release of provident fund is that criminal appeal filed by husband/respondent No.6 is pending in the High Court. The said ground for withholding release of provident fund is not provided under any of the provision of the Rules of 1955. The provident fund being a statutory fund, payment of the same is regulated by the provision of Statutory Rules of 1955. In the absence of there being any impediment under the Rules itself, payment cannot be withheld for any reason other than those which have been specifically provided under the Rules. Therefore, merely on the ground of pendency of criminal appeal filed at the instance of respondent No.6, withholding of provident fund, despite subsistence of valid nomination in favour of the petitioner is impermissible under the law. 15. In the result, the impugned direction of respondent No.2 issued on 7-6-2006 (Annexure P-10) is declared illegal. The official respondents shall now proceed to release provident fund standing to credit of deceased employee, in favour of petitioner No. 2 without further loss of time. 16. The petition is accordingly allowed. Petition Allowed.