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Judgment
Petitioner has filed this petition under Article 226 of the Constitution of India challenging order dated 30.10.2024, filed as Annexure P/9, passed by respondent No.5 i.e. Account General of Madhya Pradesh, Motimahal, Gwalior (M.P.).
Counsel appearing for petitioner submitted that petitioner was appointed on post of Constable on 10.06.1977. Thereafter, he was promoted on post of Head Constable on 31.01.1987. Second promotion was granted on post of ASI on 17.11.1991 and he was promoted as Sub Inspector on 02.07.2010. Petitioner got one more promotion to post of Inspector on 04.07.2015. Petitioner retired from service on 30.04.2017. At the time of retirement, order dated 01.03.2017 was issued and recovery of Rs. 8,86,047/- was ordered. Excess payment is said to have been made to petitioner between 1997 to 2017. It is submitted that petitioner has not made any misrepresentation. Respondents kept on sleeping and continuously made excess payment. Petitioner was not aware of the same. Whole amount cannot be recovered in lump sum without giving any opportunity of hearing to petitioner. Petitioner filed representation to Accountant General's office against recovery order. No order has been passed. Respondents cannot recover the amount from petitioner in view of judgment passed in case of State of Punjab and others vs Rafiq Masih (White Washer) reported in (2014) 8 SCC 883 . It is submitted that there is no negative balance in GPF account of petitioner between 1996 to 2017. Petitioner has given explanation regarding negative balance in GPF Account but said representation was not considered and amount was recovered from retiral dues. Prayer is made that impugned order dated 30.10.2024 be quashed and amount be returned to him.
Counsel appearing for respondent No.5 submitted that final payment of GPF of petitioner was done as per Rule 32(3)(iii) of M.P. General Provident Fund Rules, 1955 after verifying departmental record with ledger maintained by them. After verification, it was observed that following withdrawals were made :
Rs. 30000/- in May, 2000;
Rs. 60,000/- in May, 2001;
Rs. 23,000/- in February, 2002;
Rs. 1,81,000/- in April, 2015;
Rs. 30,000/- in April, 1997;
Rs. 30,000/- in May, 1997.
There was minus balance of Rs. 8,86,047/-, which was intimated to petitioner and his department vide letter dated 01.03.2017. Petitioner has not challenged minus balance notice and computation sheet Annexure P/2. Department had verified and admitted by subsequent letters dated 26.09.2017 and 27.11.2017 that all withdrawals were not mentioned in GPF passbook of petitioner, but mentioned in ledger accounts of answering respondent. Petitioner is making an arbitrary prayer to quash recovery. It is submitted that as per Rule 37(2) of M.P. General Provident Fund Rules, 1955, every subscriber is also responsible for ensuring correctness and completeness of GPF account slips, but petitioner despite knowing the withdrawals remained silent and made more withdrawals than deposit. Case of State of Punjab vs Rafiq Masih (supra) is not applicable in present case, as case of petitioner is in respect of minus balance in GPF account, which is regulated and recoverable under Rule 14(7) of M.P. General Provident Fund Rules, 1955. High Court has repeatedly passed orders in many cases that recovery can be made. In view of same, no interference is called for and writ petition be dismissed.
Heard the counsel for the parties.
Rule 65 of MP Civil Services (Pension) Rules, 1976 and Rule 14(7) of M.P. General Provident Fund Rules, 1955 are reproduced as under :
Rules 65 of MP Civil Services (Pension) Rules, 1976
65. Recovery and adjustment of Government dues.
(1)It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement.
(2)Where a retiring Government servant does not clear the Government dues and such dues are-ascertainable -
(a)an equivalent cash deposit may be taken from him; or
(b)out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted.
Explanation. - 1. The expression "ascertainable Government dues" includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income-tax deductible at source under the Income-tax Act, 1961 (No. 43 of 1961).
Rule 14(7) of M.P. General Provident Fund Rules, 1955
14 (7) In case a subscriber is found to have drawn from the fund an amount in excess of the amount standing to his credit on the date of the drawal, the overdrawn amount, irrespective of whether the overdrawal occurred in the course of an advance or a withdrawal or the final payment from the fund, shall be repaid by him with interest thereon, in one lump-sum, or in default, be ordered to be recovered, by deduction in one lump-sum, from the emoluments of the subscriber. If the total amount to be recovered is more than half of the subscriber's emoluments, recoveries shall be made in monthly instalments of moieties of his emoluments till the entire amount together with interest, is recovered. For this rule, the rate of interest to be charged on overdrawn amount would be 2 ½% over and above the normal rate of Provident Fund balances under sub-rule (1). The interest realised on the overdrawn amount shall be credited to Government account under a distinct sub-head "Interest on overdrawal from Provident Fund"
M.P. Civil Services (Pension) Rules, 1976 are applicable for payment of pension and gratuity. Gratuity includes service gratuity payable under Rule 43, death cum retirement gratuity is payable under Rule 44 and residuary gratuity is payable under Rule 44 sub-rule (2). Retirement benefits are mentioned in Rule 2(q), which includes pension or service gratuity and death-cum-retirement gratuity where admissible. Government dues can be recovered as per Rule 55 of M.P. Civil Services (Pension) Rules. Definition of dues is not given in Rule 3 of M.P. Civil Service (Pension) Rules, 1976. However, "ascertainable Government dues" are mentioned in Explanation-1 to Rule 65, which included balance of house building, conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income tax deductible at source.
Judgment passed by Supreme Court in case of Rafiq Masih (supra) is arising out of excess payment being made to employees due to error committed by competent authority in determining emoluments. Case of Rafiq Masih is only applicable in cases of recovery, which is to be made under Madhya Pradesh Civil Services (Pension) Rules, 1976 in accordance with Rule 65. Said judgment will have no application in case of recovery which is to be made under M.P. General Provident Fund Rules,1955.
Recovery in respect of general provident fund shall be governed by M.P. General Provident Fund Rules, 1955. As per Rule 14(7) of M.P. General Provident Fund Rules if subscriber is found to have drawn from fund an amount excess of the amount standing to his credit, then said amount of advance or withdrawal is to be repaid by him with interest in lump sum and in case of default same to be recovered by deduction in lump sum from the emoluments of subscriber. Rule 65 of Pension Rules lays down the process of recovery and Government dues are defined in Explanation-1 to Rule 65. In Explanation-1 to Rule 65, Government dues are to be adjusted by taking equivalent cash deposit from the employee or out of gratuity payable to him or to his nominee or legal heir.
On going through aforesaid provisions of law, it is found that excess payment which has been made to an employee regarding house building, conveyance advance, rent, pay/allowances, and income tax can be deducted under Rule 65 of Pension Rules, 1976. If there is negative balance then same is to be recovered under Rule 14(7) of M.P. General Provident Fund Rules, 1955. Rule 14(7) lays down that in cases of default of repayment of withdrawal from provident fund, same can be recovered lump sum from emoluments of subscriber. Emolument means a payment that is made specially in money or any other form for service of an employee. Emolument will include pension as same is paid for services of an employee. Therefore, Rule 14(7) of General Provident Fund Rules, 1955 can be used for recovery. Recovery in respect of over payment of pay and allowances stands on a different footing from recovery which is to be made for negative balance in GPF account. In case of over payment of pay and allowances, there is no misrepresentation by a party and due to mistake of an employer, excess amount is paid to an employee . Employee is not aware of said mistake on part of employer and consumes said excess payment in his account. Small excess payments are made each month which over period of time becomes a towering amount which causes hardship to an employee. Employee is not aware of said excess payment nor there is any misrepresentation on his part. In said cases, Apex Court has repeatedly stated that at the time of retirement, lump sum recovery cannot be made from retired employee. However, in case, where an employee has made withdrawal from GPF account, he is aware of such a withdrawal. Withdrawal is permitted on his request and it is duty of an employee to return the said sum with interest in GPF account. If party defaults, then recovery can be made.
From aforesaid, it is clear that principles laid down in case of Rafiq Masih (supra), shall be not applicable in cases of recovery for negative balance in GPF account. Employee is aware of said withdrawal and under law, he is duty bound to repay the said amount, therefore, recovery can be made from his pension in accordance with Rule 14(7) of General Provident Fund Rules, 1955. Pension is emolument i.e. money earned by service. Therefore recovery can be ordered from pension which includes gratuity under Rule 14(7) of General Provident Fund Rules, 1955.
Writ petition filed by petitioner is dismissed.