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2014 Supreme(All) 3299
ALLAHABAD HIGH COURT
Sanjay Misra, Brijesh Kumar Srivastava-II, JJ.
Jeevan Banerjee - Appellant
Versus
State of U.P. & Ors. - Respondent
Writ Petition No. 1714(S/B) of 2009
Decided On : 11-08-2014
For the Petitioner: O.P.M. Tripathi
For the Respondent: C.S.C.,Anuj Kudesia,Pradeep Raje
The statutory welfare benefit i.e. provident fund cannot be withheld only for the reason of the pendency of a civil suit.
Headnote:
provident fund - recovery of provident fund - 1981(1) SCC 449, 1994(6) SCC 589 - The court discussed the provisions of the provident fund and gratuity as welfare benefits under statute and held that there cannot be any occasion for deduction as set off. It also held that the death-cum-retirement gratuity cannot be withheld since it cannot be made dependent upon the employee vacating the official accommodation.
Fact of the Case:
The petitioner sought a writ in the nature of mandamus to command the opposite parties to make payment of provident fund through employee provident fund No. U.P. 7486/189 to the petitioner and 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 suffered due to non-payment of employees provident fund for the last 17 years.
Finding of the Court:
The court found that the respondents cannot withhold the statutory welfare benefit i.e. provident fund of the petitioner only for the reason of the pendency of the civil suit. The court allowed the writ petition and directed the respondents to pay the provident fund due to the petitioner within a month from the date of the judgment.
Issues: The main issue was the withholding of the provident fund of the petitioner by the respondents due to the pendency of the civil suit filed by the respondents against the petitioner for the loss occasioned by the petitioner to the respondents.
Ratio Decidendi: The court held that the death-cum-retirement gratuity cannot be withheld since it cannot be made dependent upon the employee vacating the official accommodation. It also emphasized that the statutory welfare benefit i.e. provident fund cannot be withheld only for the reason of the pendency of a civil suit.
Final Decision: The court allowed the writ petition and directed the respondents to pay the provident fund due to the petitioner within a month from the date of the judgment. The petitioner was also 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 up to the date of its actual payment. The court made it clear that it had not expressed its view on the substance of the claim of the respondents against the petitioner with respect to the pending civil suit, and that had to be considered by the civil court.
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. 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 ful
