Petitioner has invoked Article 226 of the Constitution of India by
filing this writ petition praying for following relief:-
(iii) That, respondent no. 3-6 may kindly be ordered/directed
to return or deposit back the amount of Rs. 10,26,787 (Rs. Ten
Lakhs Twenty-Six Thousand Seven Hundred and Eighty-Seven)
back to the petitioner's GPF account along with the due
interest and it may also be declared that petitioner is entitled
to get lost money of GPF account, along with the due interest.
Therefore, Respondents are liable to be deposited back to its
GPF account.
7.3. That, the order dated 7/7/2022 Annexure P/14 is per - se
illegal and against law. Therefore, it is submitted that said
order dated 7/7/2022 Annexure P/14 may kindly be quashed
and the recovery may be set aside."
2. Facts necessary for decision of this case are that the petitioner was
working as Assistant Veterinary Field Officer in Animal Husbandry and
Dairying Department. He was lastly posted at Shivpuri. He retired from
service w.e.f. 31/3/2018.
3. The GPF account No. B/10644 of the petitioner is maintained with
respondent no.4. In the year 2003, when the petitioner came to know about
certain withdrawals from his GPF account, he applied for relevant record
from the office of respondent no.4, which was furnished to him. He came to
know about certain withdrawals from his account amounting to Rs.2.85 lakh
ranging from year 1997 to March' 2001. As per the petitioner, since he has
not withdrawn this amount, he immediately lodged objection with
respondent no.2 by making representation on 27/2/2004 (Annexure P/3. The
respondent no.3 wrote to respondent no.6 on 27/4/2004 which reflects that
amount withdrawn from the petitioner's GPF account is Rs.4,12,400/-
during the period from March' 1997 to March' 2001. This was much more
than what the petitioner has stated in his aforesaid representation.
4. As per petitioner's contention, out of the aforesaid amount, he has
withdrawn only Rs.17,500/- and Rs.34,500/- in March' 1997 and January'
1999 respectively. Except the aforesaid, rest of the amount of Rs.3,60,000/-
was never withdrawn by him. He again made an application on 4/11/2004 to
the Collector, Shivpuri requesting him for initiating legal action against the
erring officials/employees of the department. The respondent no.3 wrote to
petitioner on 19/4/2005 informing him about the negative balance of
Rs.3,64,654/- in his GPF account. He also informed about the intended
recovery from his salary. The petitioner again protested against the same by
submitting representation. The Accounts Officer of respondent no.4 wrote to
Commissioner of the Department on 1/9/2005 informing him that since the
matter of alleged fraudulent withdrawals from petitioner's account relates to
the department itself, appropriate action be taken in the matter.
5. The office of respondent no.3 lodged a complaint with Police Station
Dehat, District Shivpuri on 18/2/2008. A perusal of this letter shows that
apart from petitioner's account, there were unauthorized withdrawal from
other accounts also. Yet another letter was written to the police on
26/6/2006 with a request to register a criminal case and to investigate the
matter. Accordingly, the criminal case was registered as Crime No.12/2006
by EOW, Bhopal. It is stated that the crime number was subsequently
changed to Crime No.07/2008. After investigation, the challan was filed and
the trial was initiated in the Court of Special Judge (PC Act) Shivpuri and
case was registered as SC (EOW) No.1/2020. One, Mehmood Beg Mirza,
retired employee of the Department, was the accused in the aforesaid
criminal case.
6. Even though as per the opinion of the Department itself, there are
fraudulent withdrawals from the petitioner's account, Senior Accounts
Officer of respondent no.4 wrote to Deputy Director of the Department on
30/5/2017 to start recovering the amount of negative balance of GPF
account, from the petitioner's salary. The petitioner was accordingly served
with notices.
7. At this stage it is noted that the petitioner has filed W.P. No.870/2008
before this Court praying for a direction to the respondents to deposit the
amount which has been illegally withdrawn from his GPG account. He has
filed another W.P. No.5088/2018 challenging the communication made by
office of respondent no.4 with the department asking them to deduct more
amount from the petitioner's salary so as to maintain positive balance in his
GPF account and further not to allow any further withdrawal from his
account. These writ petitions are still pending. The petitioner has disclosed
factum of pendency of these petitions in the present writ petition.
8. The petitioner retired from service on 31/3/2018. Impugned order
dated 15/3/2022 (Annexure P/1) came to be passed by the Deputy Director
of the Department directing recovery of Rs.10,26,787/- from the amount
payable to the petitioner towards leave encashment, arrears of Kramonati
and remaining amount from his pension. Challenging this order, the
petitioner has filed this writ petition.
9. During pendency of this writ petition, another impugned order dated
7/7/2022 came to be passed by Deputy Director, whereby, the District
Pension Officer was requested to direct the pension paying bank for
recovery of remaining amount from the petitioner's pension. This order has
also been challenged by the petitioner by amending the writ petition.
10. During pendency of this writ petition, the criminal trial against
Mehmood Beg Mirza also came to be concluded with passing of judgment
dated 4/10/2023. A copy of which has been placed on record by petitioner
vide I.A. No.4472/2026. The accused has been acquitted in the criminal
case.
11. The petitioner's counsel argued that the recovery of the alleged
negative balance amount from the petitioner's retiral dues is ex facie illegal
and impermissible in view of Apex Court decision rendered in the case of
State of Punjab Vs. Rafiq Masih reported in (2015)4 SCC 334. It is his
further submission that the petitioner has never withdrawn the amount from
his GPF account and the fraudulent withdrawals have been made, and
therefore, petitioner cannot be made responsible for refund of the said
amount. It is his submission that the respondents themselves have reported
the matter to the Police regarding the fraudulent withdrawals not only from
the petitioner's account but also from the account of several others. Merely
because the accused has been acquitted on technical grounds in the criminal
case, that would not mean that the liability is to be fastened on the
petitioner. It is his submission that petitioner is not only entitled to get back
his amount of leave encashment and arrears of Kramonati and the other
amount recovered, but he is also entitled to get the amount of his GPF after
correction of the entries.
12. Learned counsel further argued that in view of the judgment rendered
by the Division Bench of this Court in the case of Ramnarayan Sharma vs.
State of M.P. & ors. reported in 2017(2) MPLJ 673, no recovery could be
made from his retiral dues after lapse of six months from the date of
petitioner's retirement. At best, the respondents can initiate recovery
proceedings by filing civil suit. On this ground also, he is entitled for refund
of is retiral dues with interest.
13. On the other hand, learned Govt. Advocate for the State supported the
impugned action of the respondents. As per his submission, since there is a
negative balance in the petitioner's GPF account, he is liable to refund the
said amount. He submitted that the petitioner has made excess withdrawal
from his GPF account, which is recoverable from him with interest in terms
of Rule 14 (7) of Madhya Pradesh General Provident Fund Rules, 1955 as a
statutory recovery for which office of respondent no.4 has issued various
directions to the department. He further submitted that the impugned
recovery has been made from the petitioner pursuant to the directions issued
by respondent no.4. The respondents have also denied the allegation that
some wrong entries were made in the petitioner's GPF account. Learned
counsel also submitted that petitioner has furnished undertaking/indemnity
bond and the consent letters stating that in case, any excess amount is found
to be paid to him, he will refund the same. He thus submitted that the
petitioner is bound by his undertakings and therefore, cannot challenge the
recovery of the amount from him. The learned Govt. Advocate relied upon
judgments rendered by this Court in the case of Ram Baksh Dwivedi vs.
State of M.P. & ors. in W.P. No.14080/2012 and Netram Singh Kirar vs.
State of M.P. & ors. in W.P No.6662/2014.
14. Considered the arguments and perused the record.
15. So far as the amount of recovery from the petitioner is concerned,
since it is the negative balance in GPF account, the decision rendered by the
Apex Court in the case of Rafiq Masih(supra), is of no help to the
petitioner. However, petitioner's counsel is justified in placing reliance upon
the Division Bench decision of this Court in the case of Ramnarayan
Sharma (supra), wherein, after interpreting the provisions of GPF Rules,
this Court held that after expiry of six months from the date of retirement,
recovery of GPF amount cannot be made from the retiral dues and the
respondents are required to initiate recovery proceedings under the relevant
law. The relevant extract of the DB decision is as under:-
"8. After hearing learned counsel for the parties, this Court is
of the considered view that the present appeal is liable to be
allowed as the action of the respondents in adjusting the debit
balance of the GPF account from the gratuity amount due to
the petitioner after more than two years of superannuation is
unsupported by any authority of law for the reasons
mentioned infra.
8.1.The GPF rules are framed under the proviso to Article 309
of the Constitution of India for constitution of General
Provident Fund and prescribing procedure for depositing,
withdrawal, payment of interest and borrowing qua the said
GPF.
8.2.The State has referred to Rule 14(7) of the GPF Rules
which is reproduced supra. Rule 14(7) contemplates situation
that if withdrawal is made from the fund by the subscriber in
excess of the amount to his credit on the date of drawal, the
overdrawn amount shall be repaid by the subscriber with
interest thereon in lump sum or in default shall be recovered
by deduction in one lump sum/in instalments from the
emoluments of the subscriber.
8.3.Apart from Rule 14(7) in GPF Rules, no other rule
governs the field of recovery of over drawn GPF amount.
Therefore, this Court will have to fall upon Rule 14(7) for
judging the validity and legality of the order of recovery
assailed herein.
8.4.The expression "emoluments" used in Rule 14(7) is not
defined in the GPF Rules. However, if assistance of the
Pension Rules of 1976 is sought then definition of emoluments
is found in Rule 3(1)(d) read with Rule 30, to mean the pay as
defined in Rule 9(21) of Fundamental Rules (including
dearness allowance pay, if any), which a Government servant
was receiving immediately before his retirement or on the date
of his death, as the case may be. For ready reference and
convenience Rule 3(1)(d) and Rule 30 of the Pension Rules
are reproduced below:--
"Rule 3(1)(d) "Emoluments" means emoluments as
defined in Rule 30.
Rule 30. Emoluments.-- The expression "emoluments"
means pay as defined in Rule 9(21) of the Fundamental
Rules (including dearness pay, if any, as determined by
the order of the Government issued from time to time)
which a Government servant was receiving immediately
before his retirement or on the date of his death, as the
case may be.
Explanation. -- (1) For those Government servants who
are drawing pay in the revised pay scales, under the
Madhya Pradesh Revision of Pay Rules, 1990 or Madhya
Pradesh Revision of Pay Rules, 1998 or pay scales of
U.G.C. or All India Council of Technical Education or
All India Services, the expression 'emoluments' means
basic pay as defined in Rule 9(21)(a)(i) of the
Fundamental Rules, which a Government servant was
receiving immediately before his retirement and will also
include dearness pay and personal pay, if any, as
determined by the order of State Government, from time
to time."
8.5.From the definition of emoluments it becomes clear that
the same refers to the pay which a Government servant
receives till his retirement. Thus, the expression
"emoluments" employed in Rule 14(7) of GPF Rules
necessarily implies that the rule making authority had in
service Government servant in mind and not a retired
Government servant in mind while bestowing power of
recovery. Thus, it can safely be concluded that the Provident
Fund Rules do not empower in expressed terms recovery to be
made for adjustment of debit balance in the GPF account
from gratuity.
8.6. The subject of accrual of, calculation of, payment of and
recovery from the amount of gratuity of a Government servant
is governed by the M.P. Civil Services Pension Rules of 1976.
8.7. Gratuity is defined in Rule 3(1)(i) while recovery of
Government dues from gratuity is provided in Rules 65 and 66
which are reproduced supra.
8.8.Rule 65 provides that every retiring Government servant is
duty bound to clear all Government dues before retiring
failing which the competent authority is empowered to take
equivalent cash deposit from the retiring Government servant
or recovering the ascertainable Government dues from the
amount of gratuity payable. The expression "ascertainable
Government dues" have though not been exhaustively defined
but few illustrations i.e. house building/conveyance advance,
arrears of rent and other charges pertaining to occupation of
Government accommodation or over payment of pay and
allowances and arrears of income-tax deductible at source
under the income-tax Act, are prescribed in Explanation-1
appended to Rule 65 of Pension Rules.
8.9. Rule 66 circumscribes the generic power under Rule 65.
The said Rule provides that if any Government dues (other
than those referred in Rule 65) remained unrealized and
unassessed, surety may be taken from the retiring Government
servant and the amount of pension and gratuity should be
released without any delay. Rule further provides that in case
of inability expressed by retired Government servant to
furnish the surety, suitable cash deposit may be taken from
him or a portion of gratuity which is sufficient to meet out the
standing dues should be withheld. Rule further provides that
where the dues are unascertainable then withholding of
gratuity should be limited to 10%.
8.10.Clause (3) of Rule 66 emphasizes that the assessment of
dues and its adjustment should be completed within a period
of six months from the date of retirement and if there is no
claim made on Government account against the Government
servant within this period then it shall be presumed that no
Government claim excluding claim of house rent and water
charges are outstanding against him. This sub-rule further
provides that in case the dues as ascertainable, the same be
adjusted against the cash deposit or the amount withheld
gratuity and the balance shall be released in favour of the
retired Government servant immediately after six months from
the date of retirement.
8.11.Clause (4) of Rule 66 which is relevant herein provides
that after completion of exercise of assessing the
unascertainable Government dues, if the dues remain
unascertained within six months from the date of retirement
then recovery can take place from the retired Government
servant only through legal procedure barring dues pertaining
to house rent and water charges for which period of 12
months instead of 6 months is provided.
8.12.Scheme of Rule 66 can be bifurcated in two parts. The
first part pertains to recovery of ascertainable dues and the
second of unascertainable dues. In case of ascertainable dues
the mode of taking cash deposit or surety or recovery from
gratuity at the time of retirement is permissible. However, in
case of unascertainable except dues relating to house rent and
water charge, period of six months from the date of retirement
is provided for the Government to assess and calculate the
exact amount of dues. For adopting the same procedure of
adjustment against the cash deposit or partly withheld
gratuity within the period of six months. Whereas in case of
unascertainable dues pertaining to house rent and water
charges long period of 12 months is prescribed for completing
the process of assessment and calculation.
8.13.After the period of 6 months/12 months from the date of
retirement the only mode available for recovering
ascertainable and unascertainable Government dues is by
taking recourse to legal procedure which means filing the suit
for recovery in the Court of competent civil jurisdiction.
9.In the instant case, the dues squarely falls within the
category of ascertainable dues i.e. overdrawal by the
petitioner from his GPF account. Thus the respondents were
empowered to recover the said ascertainable dues for
adjusting the debit balance in GPF account by
withholding/withdrawing gratuity of the petitioner within a
period of six months from the date of retirement. Petitioner
attained the age of superannuation on 30-4-2012. The period
of six months expired on 30th October, 2012, however,
respondents by the impugned action made recovery of the
dues after more than two years from the date of retirement
without following the prescribed procedure of approaching
the Civil Court for recovery of the Government dues."
14. The learned Govt. Advocate relied upon coordinate bench judgment
of this Court in the case of Ram Baksh Dwivedi (supra). However, that was
not a case of pensioner but was a case an employee who was in service and
recovery was being made from his salary. Further, the case of Netram
Singh Kirar (supra) was though relates to a pensioner, however, neither the
issue as to whether recovery after six months can be made from retiral dues,
was raised nor the Division Bench judgment in the case of Ramnarayan
Sharma (supra) was cited before the Court. Thus, both the judgments do
not help the respondents.
15. Admittedly, petitioner retired from service on 31/3/2018. The
impugned order of recovery has been passed on 15/3/2022 and 7/7/2022.
Thus, in view of the Division Bench decision of this Court, the respondents
could not have recovered the amount from the retiral dues of the petitioner.
Petitioner is thus entitled for refund of the amount recovered from him from
is retiral dues and pension.
16. The other important issue for consideration is as to whether the
negative balance in the petitioner's GPF account is justified or not?
17. The petitioner has been agitating the matter before respondents since
2003 against the withdrawal shown in his GPF account. As per his
submission except Rs.17,500/- and Rs.34,500/-, no withdrawals has been
made by him from his GPF account. Further, correspondences placed on
record shows that the fraudulent withdrawals have been made not only from
the petitioner's account but also from the account of other employees of the
department. The respondents themselves reported the matter to the police,
which was entrusted to EOW and one Shri Mehmood Beg Mirza and Shri
S.S. Senger, retired employee of department, was prosecuted for these
withdrawals. Shri Senger died on 01.02.2006. Even though Shri Mehmood
Beg Mirza has been acquitted in the criminal case, that does not mean that
the withdrawals have been made by the petitioner.
18. A perusal of judgment passed in criminal case, it is gathered that
amount was withdrawn from the accounts of Virendra Singh Ahirwar
(petitioner), Om Prakash Khatik, Ram Singh Mirdha and Ram Naresh
Mishra. The prosecution could not establish that the amount was withdrawn
by Shri Mirza from GPF accounts of petitioner and others. However, that
does not mean that the amount was withdrawn by the petitioners. The
respondents have yet not undertaken the exercise of verifying the fact that
the application for withdrawal contains petitioner's signature or not.
19. In order to ascertain as to whether the amount is withdrawn by
petitioner or not, the respondents are required to make an enquiry into the
alleged withdrawals and to record a findings as to whether these
withdrawals have been made by the petitioner or not. This could be done
simply by verifying the withdrawal slips/application and/or other official
record relating to such withdrawals. If upon enquiry, it is found that these
withdrawals are not made by the petitioner, the respondents are required to
correct the entries in the GPF account of petitioner and to make payment of
GPF amount to him alongwith interest. On the other hand, if it is found that
the amount is withdrawn by him, the amount is to be recovered from him by
adopting procedure provided under law.
20. In view of the aforesaid, this petition is disposed of with following
directions:-
(i) The respondents are directed to refund the amount of
Rs.5,37,690/- towards his leave encashment, Rs.3,48,016/-
towards arrears of Kramonati and the amount which has been
recovered from his salary/pension towards recovery of over-
withdrawal of GPF amount. He is also held entitled to get
interest @ 6% per annum w.e.f. 1/4/2018 till actual payment;
(ii) The respondent no.2 is directed to personally supervise the
enquiry with regard to withdrawals of amount from the
petitioner's GPF account and to record a specific finding as to
whether the amount has been withdrawn by him or not? if it is
found that the amount is not withdrawn by the petitioner, the
entries in his GPF account be corrected and the amount of
GPF, with interest, be also paid to the petitioner;
Let the aforesaid directions contained in Clause (i) & (ii) be
complied with within 90 days from the date of submission of
certified copy of this order.
(iii) If ultimately it is found that the amount is over-withdrawn
by the petitioner from his GPF account, the respondents are at
liberty to recover the said amount by filing a civil suit for the
said purpose.
21. The petition is disposed of accordingly with the aforesaid directions.
(ASHISH SHROTI)
JUDGE
jps/-
