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2014 DIGILAW 2439 (ALL)

Jeevan Banerjee v. State of U. P.

2014-08-11

BRIJESH KUMAR SRIVASTAVA II, SANJAY MISRA

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JUDGMENT We have heard Sri O.P.M. Tripathi, learned counsel for the petitioner and Sri Anuj Kudesia, learned counsel appearing for contesting respondents no. 2 and 3. 2. Counter affidavit and rejoinder affidavits have been exchanged between the parties and with the consent of parties counsel the writ petition is being decided finally today itself. 3. By means of this writ petition, the petitioner has prayed for issue of a writ in the nature of mandamus commanding the opposite parties to make payment of provident fund through employee provident fund No. U.P. 7486/189 to the petitioner and also to make payment of compound interest with effect from October, 1988 on the amount of the provident fund till its actual payment and to pay damages for the mental agony which the petitioner has suffered due to non payment of employees provident fund to him for the last 17 years. 4. Learned counsel for the petitioner has submitted that the petitioner was removed from service vide order dated 27.09.1988 with a direction that the amount of loss caused by the petitioner to the Government be recovered from him. The petitioner appears to have filed Writ Petition No. 8216 (SB) of 1988 challenging the order of removal and the writ petition was allowed vide order dated 09.07.1991 and the order of removal was set aside and the petitioner was reinstated in service from 15.07.1991. 5. According to learned counsel for the petitioner, the respondents had filed Special Leave Petition (Civil) No. 3568 of 1991 [Harijan Avam Nirbal Avas Nigam Ltd. Vs. Jeewan Banerjee] before Hon'ble Supreme Court against the order of the High Court dated 09.07.1991 which was registered as Civil Appeal No. 2566 of 1991 and by the judgment and order dated 14.07.1992 the appeal was allowed and the order dated 09.07.1991 of the High Court was set aside and the matter was remitted back for hearing to the High Court. 6. Learned counsel for the petitioner informs that subsequent to remand the writ petition of the petitioner was dismissed and as such the removal order dated 27.08.1988 stands affirmed. 7. The grievance is that after the aforesaid proceedings the respondents are not paying his provident fund to the petitioner. 6. Learned counsel for the petitioner informs that subsequent to remand the writ petition of the petitioner was dismissed and as such the removal order dated 27.08.1988 stands affirmed. 7. The grievance is that after the aforesaid proceedings the respondents are not paying his provident fund to the petitioner. According to learned counsel for the petitioner the retiral benefits are being withheld by the respondents on the ground that they have filed a suit before Civil Court for recovery against the petitioner for the loss occasioned by the petitioner to the respondents and due to pendency of the suit the provident fund of the petitioner has been withheld. 8. Learned counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in the Case of Som Prakash Rekhi Vs. Union of India and another [ 1981(1) SCC 449 ], and has relied on para-66 of the judgment. He has further placed reliance upon the judgment of the Supreme Court in the case of R. Kapur Vs. Director of Inspection (Painting and Publication) Income Tax and another [ 1994(6) SCC 589 ], and has relied on para-11 in his support. 9. Learned counsel for the respondents while referring to the counter affidavit has stated that the loss caused by the petitioner to the respondents is recoverable from him and to that effect a civil suit has already been filed by them. They say that because the loss has not been made good by the petitioner, no dues certificate has not been issued to the employee and hence the provident fund cannot be paid to the petitioner. 10. We have considered the submissions made by parties' counsel and perused the records. 11. In the case of Som Prakash Rekhi Vs. Union of India and another [ 1981(1) SCC 449 ], the Hon'ble Supreme Court in para-66 has held as under: "66. The public policy behind the provisions of ss.10, 12 and 14 of the respective statutes is clear. We live in a welfare State, in a `socialist' republic, under a Constitution with profound concern for the weaker classes including workers (Part IV) welfare benefits such as pensions, payment of provident fund and gratuity are in fulfillment of the Directive Principles. The payment of gratuity or provident fund should not occasion any deduction from the pension as a "set off". The payment of gratuity or provident fund should not occasion any deduction from the pension as a "set off". Otherwise, the solemn statutory provisions ensuring provident fund and gratuity become illusory. Pensions are paid out of regard for past meritorious services. The root of gratuity and the foundation of provident fund are different Each one is a salutary benefaction statutorily guaranteed independently of the other. Even assuming that by private treaty parties had otherwise agreed to deductions before the coming into force of these beneficial enactments they cannot now be deprivatory. It is precisely to guard against such mischief that the non-obstante and overriding provisions are engrafted on these statutes." 12. From the aforesaid it appears that the pension and payment of provident fund and gratuity are the welfare benefits under statute and there cannot be any occasion for deduction as set off. 13. In the case of R. Kapur Vs. Director of Inspection (Painting and Publication) Income Tax and another [ 1994(6) SCC 589 ], the Hon'ble Supreme Court in para-11 has held as under: "11. The Tribunal having come to the conclusion that DCRG cannot be withheld merely because the claim for damages for unauthorized occupation is pending, should in our considered opinion, have granted interest at the rate of 18% since right to gratuity is not dependent upon the appellant vacating the official accommodation. Having regard to these circumstances, we feel that it is a fit case in which the award of 18% is warranted and it is so ordered. The DCRG due to the appellant will carry interest at the rate of 18% per annum from 1-6-1986 till the date of payment. Of course this shall be without prejudice to the right of the respondent to recover damages under Fundamental Rule 48-A. Thus, the civil appeal is allowed. However, there shall be no order as to costs." 14. In this case it was held that the death-cum-retirement, the gratuity cannot be withheld since it cannot be made dependent upon the employee vacating the official accommodation. 15. From the aforesaid we find that the allegation is that the petitioner had caused loss to the respondents and through the civil suit recovery has been sought from the petitioner but there appears to be no order in favour of the respondents or against the petitioner in the suit. 15. From the aforesaid we find that the allegation is that the petitioner had caused loss to the respondents and through the civil suit recovery has been sought from the petitioner but there appears to be no order in favour of the respondents or against the petitioner in the suit. The respondents can not withhold the statutory welfare benefit i.e. provident fund of the petitioner only for the reason of pendency of the civil suit. 16. Under such circumstances, the writ petition is liable to be allowed. It is accordingly allowed. 17. The respondents are directed to pay the provident fund due to the petitioner within a month from today. 18. Since the order for recovery of the loss against the petitioner was passed by the respondents? in the year 1992 which recovery is being sought through the civil suit the withholding of the provident fund of the petitioner by the respondents is clearly unwarranted therefore, the petitioner would be entitled to simple interest on the delayed payment of the provident fund at the rate of 9% per annum with effect from 1.9.1992 upto the date of its actual payment. 19. It is made clear that we have not expressed our view on the substance of the claim of the respondents against the petitioner with respect to pending civil suit and that has to be considered by the civil court. 20. No order is passed as to costs.