Bombay High Court
Vidhya D. Joshi vs Mumbai Municipal Corporation And ... on 21 December, 2021
Bench: R.D. Dhanuka, R. N. Laddha
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Digitally signed
by BIPIN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BIPIN DHARMENDER
DHARMENDER PRITHIANI
PRITHIANI Date:
ORDINARY ORIGINAL CIVIL JURISDICTION
2021.12.22
18:25:42 +0530
WRIT PETITION NO. 2778 OF 2019
Vidhya D. Joshi ... Petitioner
Versus
Mumbai Municipal Corporation and Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO. 20161 OF 2021
IN
WRIT PETITION NO. 2778 OF 2019
Mumbai Municipal Corporation of Greater Mumbai ... Applicant
In the matter between :-
Vidhya D. Joshi ... Petitioner
Versus
Mumbai Municipal Corporation and Ors. ... Respondents
******
Mr. Sudhan Y. Amare a/w Ms. Sarita Zarapkar for the Petitioner.
Mr. Yashodeep Deshmukh a/w Mr. R. Y. Sirsikar and i/by Ms. Aruna
Savla for the Respondent Nos. 1 to 3.
Ms. Fatima Lakdawala for the Respondent No.4.
Mr. Kedar Dighe, AGP for the State-Respondent Nos. 5 and 6.
Mr. S. K. Sonavane, Law of Officer, Mumbai Municipal Corporation
present in Court.
Ms. Solochana Kawade, Chief Accountant Treasury, Mumbai
Municipal Corporation present in Court.
******
CORAM: R. D. DHANUKA AND
R. N. LADDHA, JJ.
DATE : 21st DECEMBER, 2021.
P.C. :-
. Rule. Mr. Deshmukh, learned counsel waives service for
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respondent nos. 1 to 3. Ms. Lakdawala, learned counsel waives
services for respondent no.4. Mr. Dighe, learned AGP waives service
for respondent nos. 5 and 6.
2. By this petition filed under Article 226 of the Constitution of
India, the petitioner seeks order and direction against the Municipal
Corporation for payment of provident fund due to the petitioner along
with interest and for directions against respondent no.6 to investigate
regarding the cheque bearing no. 0541122 dated 10th October, 1995 of
the Provident Fund amount of the petitioner.
3. The petitioner was working as a teacher of secondary school in
Mumbai Municipality on 11th June, 1966. After service of 28 years in
the Mumbai Municipal School, on 1st March, 1995, the petitioner took
voluntary retirement because of her health issues. It is the case of the
petitioner that the petitioner received gratuity and other dues on 16th
September, 1995 by way of cheque. The details are shown in the
pension book. The petitioner is getting her pension regularly but till
date has not received her provident fund dues of Rs.1,48,760.50/-.
4. It is the case of the petitioner that after her retirement in October
1995, her provident fund cheque was handed over to her. The
petitioner counter signed a receipt of the said cheque in good faith. It is
the case of the petitioner that she was told that since pension book was
not ready, petitioner shall return the provident fund cheque. The
petitioner returned the said cheque to the Municipal Corporation. The
petitioner was then informed by then officer in provident fund office of
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respondent no.2 that the petitioner will be paid in due course but till
today no amount is paid. It is the case of the petitioner that the
petitioner thereafter made enquiry under the Right to Information Act
and was informed that the said cheque of Rs.1,48,760.50/- bearing no.
1,48,760.50/- dated 10th October, 1995 had been paid to the petitioner.
The petitioner made further representation to the Municipal
Corporation for payment of her provident fund amount in the sum of
Rs.1,48,760.50/-. The petitioner thus filed this writ petition in the
Month of August 2019.
5. The writ petition is vehemently opposed by the Municipal
Corporation on the ground that the petitioner has been already paid the
said amount towards provident fund. Learned counsel for the
Corporation placed reliance on the bank statement issued by the State
Bank of India, Bombay Main Branch showing the said amount of
Rs.1,48,760.50/- debited to the bank account of the Municipal
Corporation on 13th October, 1995.
6. It is the case of the Municipal Corporation that the Municipal
Corporation also addressed various letters to the State Bank of India
making enquiry in respect of the said payment. Our attention is invited
to the document annexed at Exhibit 'R1' i.e. a noting of the accounts
department. It is submitted that initially there was endorsement 'NTP-
not to pay'. The said endorsement was however cancelled. The said
document was counter signed by the petitioner. Learned counsel for
the Municipal Corporation on instruction states that no cheque would
have been issued in the sum of Rs.1,48,760.50/- unless the said
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endorsement of not to pay would have been cancelled.
7. Learned counsel for the Municipal Corporation would submit
that the writ petition has been filed after 25 years from the date of the
payment due to the petitioner and thus no reliefs can be granted in view
of gross delay on the part of the petitioner. The learned counsel also
placed reliance on the judgment of Hon'ble Supreme Court in case of
Tilokchand and Motichand and Ors. v/s. H. B. Munshi and Ors., AIR
1970 SC 898 and in case of Union of India (UOI) and Ors. v/s. M. K.
Sarkar, 2010 (2) SCC 59 in support of the contentions that the
petitioner having approached this Court under Article 226 of the
Constitution of India, after gross delay, no order can be granted in
favour of the petitioner. In view of the controversy whether the
petition has received the said amount of Rs.1,48,760.50/- from the
Municipal Corporation or not we permitted the petitioner to file an
additional affidavit and to produce the passbooks of the petitioner.
Pursuant to the said order, the petitioner filed additional affidavit
notarized on 21st November, 2020 enclosing the photocopy of the
passbooks of five accounts in support of the submission that the said
amount of Rs.1,48,760.50/- is not credited in any of the accounts of the
petitioner. It is the case of the petitioner that there is no other bank
account opened by the petitioner in which the said cheque of
Rs.1,48,760.50/- could have been deposited.
8. Pursuant to the order passed by this Court, the State Bank of
India has also filed an additional affidavit stating that the matter
relating to the payment of Rs.1,48,760.50/- is for the period of
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1995. The bank has not maintained any record for such a long period.
The Municipal Corporation is not in a position to deny the correctness
of the passbooks of five accounts produced by the petitioner for perusal
of this Court. Municipal Corporation is not in a position to discharge
the onus cast on it that the said amount of Rs.1,48,760.50/- though has
been debited in the account of the Municipal Corporation opened with
State Bank of India has been credited to the account of the petitioner.
9. The petitioner on one hand has come to this Court with a case
that the said amount of Rs.1,48,760.50/- has not been paid to the
petitioner whereas the Municipal Corporation has come out with a case
that the said amount of Rs.1,48,760.50/- has been debited to the
account of Municipal Corporation. In our view, the onus is on the
Municipal Corporation to prove that the said amount has been paid by
it and is credited to account of the petitioner. We are inclined to accept
the statement made by the petitioner and also in the additional affidavit
that the said amount of Rs.1,48,760.50/- has not been credited in the
account of the petitioner. The petitioner has produced the passbooks
from 1995 onwards which would prima-facie clearly indicate that the
said amount of Rs.1,48,760.50/- has not been credited in the account of
the petitioner.
10. Before considering prayer clause (b) of the petitioner for
directing the Commissioner of Police to conduct an enquiry regarding
the payment of Rs.1,48,760.50/- vide cheque no. 0541122 dated 10 th
October, 1995, we gave repeated opportunities to the Municipal
Corporation to consider at the level of the Municipal Commissioner
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whether this amount can be released in favour of the petitioner. This
Court considering the fact that there are serious allegations of fraud
made by the petitioner observed that it would be appropriate to refer
this matter for criminal investigation. This Court accordingly observed
that before referring the matter for criminal investigation, it would be
appropriate that the Municipal Commissioner intervenes in the matter
and decide whether the said amount of Rs.1,48,760.50/- would be paid
to the petitioner or not. This Court also directed the Law Officer of the
Municipal Corporation to remain present along with the authorized
senior officer on behalf of the Municipal Commissioner before this
Court to make a statement whether the said amount can be released in
favour of the petitioner or whether the Municipal Corporation is
agreeable for referring this matter for criminal investigation.
11. Mr. Amare, learned counsel for the petitioner states that his client
has not received any amount alleged to have been paid by the
Corporation and is ready to face any criminal investigation and is
pressing for such as prayed in prayer clause (b) of the petition.
12. Learned counsel for the State Bank of India on the other hand
states that the State Bank of India is not suppose to maintain the record
beyond the particular number of years as per RBI Guidelines and thus
would have no role even if this Court refers the matter for criminal
investigation.
13. In our view, this is the fit case for referring the matter for
criminal investigation on the issue whether any fraud is committed
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insofar as payment in sum of Rs.1,48,760.50/- is concerned and to find
out if the said amount is debited in the account of the Municipal
Corporation, in whose account the said amount is credited.
14. The Commissioner of Police is accordingly requested to appoint
a Senior Police Officer not below the rank of Deputy Commissioner of
Police for conducting an enquiry on the issue whether the amount of
Rs.1,48,760.50/- has been credited in the account of the petitioner or in
the account of the some body else. The Municipal Corporation, State
Bank of India as well as the petitioner to cooperate with the enquiry
officer during this criminal investigation. If any of the parties do not
cooperate with the investigating officer, same shall be recorded in the
proceeding. The enquiry shall be completed within four weeks from
the date of appointment of Deputy Commissioner of Police. The
Commissioner of Police is requested to appoint the Deputy
Commissioner of Police within one week from the date of
communication of this order.
15. Place the matter on board for directions on 21st February, 2022.
[R. N. LADDHA, J.] [R. D. DHANUKA, J.]
