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2017 DIGILAW 1858 (JHR)

Brajesh Kumar Gautam v. State of Jharkhand

2017-11-03

AMITAV K.GUPTA, D.N.PATEL

body2017
ORDER : D.N. Patel, J. This writ petition has been preferred for getting interest upon the General Provident Fund amount. This Petitioner was a Fast Track Court Judge (Adhoc Additional District & Sessions Judge) appointed on (17.2.2002, and due to some technicality in the appointment, his service was brought to an end, because he was selected in pursuance of an advertisement given earlier and against futuro vacancy. As he was appointed against futuro vacancy, from earlier select list, on that technical ground, his service was brought to an end by the order of the Division Bench of this Court. The matter was carried up to the Hon'ble Supreme Court and by exercising power under Article 142 of the Constitution of India, the service of this petitioner along with 21 other fast track court judges were again considered, after taking examination and interview, but, the fact remains that by the virtue of the order and judgment delivered by this Court, their services were brought to an end with effect from 31.3.2011. 2. With this background, counsel appearing for the petitioner has submitted that as the service of this petitioner was brought to an end on 31.3.2011, he applied for withdrawal of General Provident Fund amount on 6.5.2011 (Annexure-1). Application has to be preferred through the High Court of the State of Jharkhand. The High Court pointed out further details to be supplied by this petitioner vide letter dated 7.9.2011 (Annexure-2). 3. It further appears that rectification was made on 22.9.2011 by this petitioner (Annexure-3). On 13.10.2011, the Principal District & Sessions Judge, East Singhbhum, Jamshedpur, forwarded the application to this High Court for withdrawal of the General Provident Fund amount. 4. It further appears from the facts of the case that as the matter was pending before the Hon'ble Supreme Court, under all hopes that Fast Track Courts Judges were to be reinstated, and hence, General Provident Fund amount was not allowed to be withdrawn. 5. It further appears from the facts of the case that repeated request were lodged by this petitioner. On 31.1.2012 there was repetition of request by this petitioner for withdrawal of the General Provident Fund amount. 5. It further appears from the facts of the case that repeated request were lodged by this petitioner. On 31.1.2012 there was repetition of request by this petitioner for withdrawal of the General Provident Fund amount. Even an application was preferred under Right to Information Act on 13.7.2012 as to why General Provident Fund amount was not permitted to be withdrawn by this petitioner and ultimately information was gathered that as petition is pending before Hon'ble Supreme Court, General Provident Fund amount was not permitted to be withdrawn. It further appears that several representations were made by this petitioner in the form of repeated request for withdrawal of General Provident Fund Amount (Annexures-7, 8 and 9). 6. Ultimately permission was granted for withdrawal of the General Provident Fund amount by letter dated 23.1.2016 (Annexure-9) and the amount was paid on 3.10.2016 which is at Rs.10,27,870/-. 7. It also appears that now-a-days transparency is being maintained for General Provident Fund amount and the General Provident Fund amount of the employees can be seen from a particular website which is downloaded by the petitioner on 20.4.2016 and the interest has also been calculated upon the principal amount of General Provident Fund amount and this amount, i.e. principal amount + interest comes to Rs.10,27,870/-. Principal amount of the General Provident Fund amount is at Rs.7,07,013/-. This amount at Rs. 7,07,013/- is inclusive of part of the interest for six months only from the date of termination, i.e., 31.3.2011. 8. It further appears from the facts of the case that as per Rule 14 of Jharkhand General Provident Fund Rules, 1948, the same does not provide for payment of interest for six months only, if Rule 14 is read in totality and not in isolation. Counsel for the respondent has heavily relied upon the aforesaid rule for the payment of interest of six months only, with which we are not in agreement, because the delay in payment of General Provident Fund amount is on the part of the respondent-State. The application for withdrawal for General Provident Fund amount was made on 6.5.2011 and the aforesaid amount of General Provident Fund amount was paid on 10.3.2016 for no fault lies on the part of this petitioner. 9. It has been held by the Hon’ble Supreme Court in the case of Bhagwati Vanaspati Traders vs. Supt. The application for withdrawal for General Provident Fund amount was made on 6.5.2011 and the aforesaid amount of General Provident Fund amount was paid on 10.3.2016 for no fault lies on the part of this petitioner. 9. It has been held by the Hon’ble Supreme Court in the case of Bhagwati Vanaspati Traders vs. Supt. of Post Offices, reported in (2015) 1 SCC 617 , in paras-11 & 14, as under:- "11. We find merit in the second contention advanced at the hands of the learned counsel for the appellant. It is indeed true, that the NSC was purchased in the name of M/s Bhagwati Vanaspati Traders. It is also equally true, that M/s Bhagwati Traders is a sole proprietorship concern of B.K. Garg, and as such, the irregularity committed while issuing the NSC in the name of M/s Bhagwati Vanaspati Traders, could have easily been corrected by substituting the name of M/s Bhagwati Vanaspati Traders with that of B.K. Garg. For, in a sole proprietorship concern an individual uses a fictional trade name, in place of his own name. The rigidity adopted by the authorities is clearly un understandable. The postal authorities having permitted M/s Bhagwati Vanaspati Traders to purchase the NSC in the year 1995, could not have legitimately raised a challenge of irregularity after the maturity thereof in the year 2001, especially when the irregularity was curable. Legally, Rule 17 of the Post Office Savings Bank General Rules, 1981, would apply when an applicant is irregularly allowed something more than what is 'Contemplated under a scheme. As for instance, if the scheme contemplates an interest of Y% and the certificate issued records the interest of Y +2% as payable on maturity the certificate-holder cannot be deprived of the interest as a whole, on account of the above irregularity. He can only be deprived of 2% i.e. the excess amount, beyond the permissible interest, contemplated under the scheme. A certificate-holder, would have an absolute right, in the above illustration, to claim interest at Y% i.e. in consonance with the scheme, despite Rule 17. Ordinarily, when the authorities have issued a certificate which they could not have issued, they cannot be allowed to enrich themselves, by retaining the deposit made. This may well be possible if the transaction is sham or wholly illegal. Not so, if the irregularity is curable. Ordinarily, when the authorities have issued a certificate which they could not have issued, they cannot be allowed to enrich themselves, by retaining the deposit made. This may well be possible if the transaction is sham or wholly illegal. Not so, if the irregularity is curable. In such circumstances, the postal authorities should devise means to regularise the irregularity, if possible. 14. The irregularity having been cured, we hope that B.K. Garg will now be released all the payments due to him, in terms of the order passed by the District Forum. The respondent is accordingly directed to pay to B.K.Garg, the maturity amount of Rs.10,075/- with 12% interest, from the date of maturity, till the date of payment. He would be entitled to Rs.5,000/- towards compensation, as was awarded to him litigation costs of Rs.10,000/-. The entire amount aforementioned should be released to B.K. Garg, the sole proprietor of M/s Bhagwati Vanaspati Traders, within one month from the date of receipt of a certified copy of this judgment." (Emphasis supplied) 10. Thus, it appears from the facts of the case that sizable amount of General Provident Fund has been retained by the respondent-State of Jharkhand. No negligence lies on the part of this petitioner because the services of this petitioner, brought to an end, by the decision of this Court on 31.3.2011 and the application for withdrawal of G.P.F. was preferred on 6.5.2011, and ultimately it was sent to the Government through proper channel. Some time has been consumed by the State Government because the matter was pending before the Hon'ble Supreme Court, and ultimately powers under Article 142 of the Constitution of India was utilized and their services were again, retained by the State of Jharkhand, after holding examination and interview, as stated in the decision rendered by the Hon'ble Supreme Court reported in (2012) 11 SCC 656 . Thus, there is no negligence on the part of the petitioner and hence, he is entitled to reasonable interest on the principal amount of General Provident Fund amount. Moreover, the aforesaid principal amount of the General Provident Fund amount has been retained by the respondent-State of Jharkhand and they have earned interest and no prejudiced has been caused to the respondent-State. 10. Moreover, the aforesaid principal amount of the General Provident Fund amount has been retained by the respondent-State of Jharkhand and they have earned interest and no prejudiced has been caused to the respondent-State. 10. We, therefore, direct the respondent no.1, to make payment of interest, upon principal amount of General Provident Fund which is at Rs.7,07,013/at simple interest at the rate of 5 per cent. The amount of interest shall be calculated and will be paid within four weeks from today. 11. With the said direction and observation, this writ petition is allowed and disposed of.