IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14470 of 2004 GUNJESHWARI DEVI Versus THE STATE OF BIHAR & ORS ----------- 3. 27.8.2008 In this writ application the prayer of the petitioner is confined to payment of the amount of provident fund of her husband late Dinanath Dubey, a police officer, who is said to have died in harness on 26.12.1986. The case of the writ petitioner is that though she has been paid all the death cum retirement benefit and is also receiving the family pension regularly, she has not been paid the amount of G.P.F. of her husband, account no.P-57247. In this regard, it has been asserted by the petitioner that for claiming such amount of provident fund she had requested the respondents time and again but the same was not paid to her and even no communication was given to her disclosing the reason for such non-payment of the amount or G.P.F. payable to her husband. It is in this regard that the petitioner has relied on her representation filed in the office Lokayukta Bihar (Annexure-1) registered as complaint case no.2/Lok(Aarakshi) 13/2003. On the basis of the aforesaid document it has been sought to be canvassed on behalf of the petitioner that the office of the Lokayukta after eliciting information from the office of the Superintendent of Police, Railway, Patna, had issued a direction for payment of the amount of provident fund in the account of the husband of the petitioner without any further delay and submit a compliance report within a period of one month from the date of issue of such order vide - 2 - Memo no.1279 dated 13.3.2004. The petitioner has stated that despite the aforementioned order of the Lokayukta Bihar dated 13.3.2004 she has not been paid the amount of G.P.F. of her husband and as such, after waiting for almost next seven months of the order of Lokayukta Bihar she has filed the present writ application on 23.11.2004 claiming the payment of G.P.F. along with the admissible interest as also penal interest. A counter-affidavit had been filed in this case on 11.7.2005 on behalf of Superintendent of Police, Railway, wherein it was stated that the payment of G.P.F. amount of Rs.28,653/- was made to the petitioner on 24.11.2004. This case was heard on 11.7.2005 on which day the contents of the aforementioned counter-affidavit did not satisfy this Court inasmuch as there was no calculationsheet nor any detailed break-up of the amount of G.P.F. of the husband of the petitioner. Consequently, this Court had expressed anguish in the aforementioned order dated 11.7.2005 and had sought explanation from the respondents as to what was the reason for an inordinate delay of nearly 20 years in making payment of the amount of G.P.F. Pursuant to the aforesaid direction as recorded in the earlier order dated 11.7.2005 the District Provident Fund Officer, Patna, has filed a counter-affidavit on 27.7.2007. Another supplementary counter-affidavit has been filed on behalf of the Superintendent of Police, Railway, Patna. The explanation given in both the aforementioned affidavits as with regard to the delay in payment - 3 - of the amount of G.P.F. to the petitioner is not at all convincing in any manner so as to disentitle the petitioner from receiving payment of interest for the period the amount contributed by the husband of the petitioner in his G.P.F. has remained in custody of the Government. In this regard the only explanation given by the District Provident Fund Officer is that as because he received final withdrawal application along with a deduction statement from the office of the Director General of Police, Bihar, vide letter no.869 dated 14.2.2004, such delay took place in authorizing payment of the amount of G.P.F. which was done by letter no.773 dated 22.5.2004. It has been further stated that on the basis of the available document the calculation was made in the office of the District Provident Fund Officer and an authorization for a sum of Rs.28,653/- was issued by letter no 1858 dated 15.9.2004 along with up-to-date statutory interest i.e. the period up to August, 2004. The District Provident Fund Officer, however, in para-5 of his counter-affidavit has refuted the blame for delay in payment of the amount of provident fund for a period of almost 18 years by stating that such delay took place because the final withdrawal application was received only in the year 2004 and consequently, the calculation of interest was made for the period up to January, 1987 to June, 1987 (six months) as per the circular of the Finance Department dated 6.5.1988. The District Provident Fund Officer has disowned the liability of payment of interest of gap period i.e. from July, 1987 to January, 2004 on the ground that in absence of - 4 - the submission of final withdrawal application by the husband of the petitioner, the petitioner could not have been paid the interest of 18 years. The supplementary counter-affidavit, however, of the Superintendent of Police, Railway, Patna, makes it clear that the husband of the petitioner had died in harness and that the amount of group insurance was paid to the petitioner being the widow on 5.1.1987. The provisional pension and gratuity were also paid to the petitioner on 21.3.1987 and even final family pension was authorized and paid to the petitioner in 1989. The office of the Superintendent of Police, Railway, Patna, has therefore, taken a plea that the amount of provident fund along with interest could not be paid as the application for final withdrawal of G.P.F. as required in Bihar G.P.F. Rules had not been filed by the husband of the petitioner who was the subscriber of the G.P.F. Such explanation of the Superintendent of Police, Railway, Patna, or his office is fit to be rejected as this Court would held that it was the duty of the office of the Superintendent of Police, Railway, Patna, to also ensure that the G.P.F. amount of the husband of the petitioner was paid to the petitioner because the concept of filing of final withdrawal application by the subscriber in the event of his retirement can be understood but when the subscriber, employee, dies in harness he cannot be expected to file his final withdrawal application. In this context, the Bihar General Provident Fund Rules, 1948 under Rules 31 and 32 clearly - 5 - provides the manner in which the claim of payment of the G.P.F. amount has to be dealt. Rule 31 of the Bihar General Provident Fund Rules clearly suggests that on the death of the subscriber, the amount is to be paid to the person nominated by the subscriber and Rule 32 in this regard is also clear wherein it has been envisaged that it is the duty of the Accounts Officer to make payment of the amount standing in the credit of the subscriber when it becomes payable. The procedure of final withdrawal as per Rule 30 and submission of a final withdrawal application by the subscriber is not to be made applicable in the case of premature death of the subscriber and calculation of interest in such cases cannot be hedged by the requirement of submission of final withdrawal application. In other words, the widow has not to suffer if the Head of the Department under whom the subscriber employee was working at the time of his death does not choose to get the amount of provident fund calculated, authorized and paid through the competent authority of the Directorate of Provident Fund including the District Provident Fund Officer. The Head of the Department of the husband of the petitioner was the Superintendent of Police, Railway, Patna, and it was under the order that other death cum retirement benefits including the amount of group insurance, provisional pension and gratuity were immediately paid to the petitioner in between January, 1987 to March, 1987 as is admitted in paragraph-2 of the supplementary counter-affidavit. It has also not been denied that the petitioner - 6 - was the known and only nominee in the provident fund account of her husband and that there was no dispute between the heirs and representatives of the husband of the petitioner as with regard to the aforementioned amount of the provident fund. Thus, it was incumbent on the Superintendent of Police, Railway, Patna, to have ensured immediate and prompt payment of the full amount of G.P.F. contribution of the husband of the petitioner in the same manner in which the amount of group insurance, provisional pension and provisional gratuity were paid to the petitioner. The instruction issued by the Government vide Memo No.F2- 4046/59/19938F dated 22.10.1959 and G.O. No.F2-4-76/59-6334 F dated 4.5.1960 make the Head of the office/department under whom the employee last served to collect the necessary information and send the same directly and immediately with the intimation of the death of the subscriber to the paying authority much earlier to the office of the Accountant General and/or to the Directorate of Provident Fund. Thus, when all the Superintendent of Police in office from January, 1987 to January, 2004 failed to take prompt action for ensuring payment of the amount of provident fund of the husband of the petitioner, they cannot escape their liability and each of such Superintendent of Police, Railway, who were in office in this period of January, 1987 to January, 2000 must be held liable for non-payment of the amount of the provident fund to the petitioner. The explanation given in the supplementary counter-affidavit - 7 - that one Nathuni Thakur, a G.P.F. clerk, in the office of the Superintendent of Police, Railway, Patna, was the guilty person as he did not open the file of the husband of the petitioner for final withdrawal of G.P.F. is fit to be rejected for more than one reason. According to the respondent themselves, Sri Thakur was in office up to July, 1992 where after he retired and it has not been stated that thereafter the post of G.P.F. clerk in the office of Superintendent of Police, Railway, had been abolished or that responsibility of the Superintendent of Police, Railway, Patna, being the Head of the office, ceased to be there. In any event, the Head of the office cannot be allowed to shift the responsibility for non-payment of the amount of G.P.F. on the clerk of his office dealing with the G.P.F. account. It is plain and simple that the respective Superintendents of Police, Railway, who were in office from the month of January, 1987 to January, 2004 had failed to discharge their duty as required under Rule 31 of the Bihar Provident Fund Rules, 1948 and the executive instructions issued thereunder and consequently, all of them have to compensate the Government and the Director of Provident Fund who is now pay the amount of interest as per the admissible rate of Bihar General Provident Fund Rules from January, 1987 to the date of his annual payment on 24.11.2004. The view that I have taken is fully supported by a judgment in a similar case in this Court in the case of Maya Devi Vrs. State of Bihar and ors. reported in 2000(4) PLJR 807 wherein almost in - 8 - similar circumstances a widow was deprived of the amount of provident fund of her husband on the ground that no application was filed by the widow for release of the provident fund amount within the stipulated time. The Court in the aforesaid Maya Devi’s case (supra) had held as follows :- “ 10. Learned counsel appearing for the respondent- State and its officials has submitted that the statutory interest on G.P.F. has been paid till October, 1996 as no application was filed by the petitioner for release of the provident fund amount within the stipulated time. 11. This Court fails to appreciate the said submission of the learned counsel for the State. According to the condition mentioned for release of provident fund amount in the case of widow, it is the responsibility of the sanctioning authority to get necessary form filled up and complete the other formalities promptly. In this regard, the relevant clause of Form No.73 is quoted hereunder :- vaÓnkrk dh e`R;q ds ckn Hkqxrku % ;fn vaÓnkrk ¼ pkgs jktif=r ljdkjh lsok gks ;k vjktif=r ½ dh e`R;q ds dkj.k Hkqxrku Hkjus dh vko';drk iM+s rks dk;kZy; iz/kku vkosnu i= dh 1 ls 4 rd dh enksa dks Hkjdj foHkkxk/;{k ds ikl vxzlkfjr dj nsxk A blds lkFk gh og lh/ks egkys[kkiky dks vaÓnkrk dh e`R;q dh lwpuk mldh Hkfo"; fuf/k dh ys[kk la[;k ds lkFk vfoyEc Hkstsxk A egkys[kkiky foHkkxk/;{k dks lykg nsxk fd vkxs dkSu lh dkjZokbZ dh tk;s A 12. It is not the case of the respondent that they ever made any endeavour to get the necessary formality completed. 13. Under such circumstances, this Court directs that the petitioner shall be paid statutory interest till up-to-date of payment of the principal amount and the remaining amount of interest may be recovered from the concerned official. “ Similarly, the right of the widow to receive the retirement benefit was also protected and affirmed by the Apex Court in the case of S.K. Mastan Bee Vs. The General Manager South Central - 9 - Railway and anr., reported in 2003(1) SCC 184. In that case it was held that by the Apex Court that on the death of the employee concerned, it was obligatory on the part of the employer, Railway, to have computed the amount of pension payable to the widow and offer the same to her without her having to make a claim or without driving her a litigation. In that context, it was held that denial of the right of the widow of the retirement benefit was an erroneous decision on the part of the Railway and in fact violation of a guarantee assured to the widow under Article 21 of the Constitution. Yet again in the case of Nirmal Kumar Mishra Vrs. State of Bihar reported in 2000(3) PLJR 334, this Court had held that when payment for a period of 13 years of the amount of provident fund was withheld, the authorities were required to compensate by paying penal interest @ 5.5% p.a. to the compounded annually on the amount of subscription in G.P.F. and the statutory interest payable thereon on the existing prevalent admissible of interest under Bihar G.P.F. Rules. In this case the delay is almost 18 years from the date of death to the date of payment and as such, the petitioner will be also entitled for payment of penal interest. It is accordingly directed that the respondents will calculate the total contribution of the husband of the petitioner along with statutory interest as applicable from the date of his appointment till the date of his death. On such amount they will calculate the statutory rate of - 10 - interest for the period of January, 1989 till the date of payment as also the additional interest @ 5.5% to be compounded annually from the date of death of the husband of the petitioner to the date of actual payment of the amount of G.P.F. of the husband of the petitioner to the petitioner. Having made such calculation of both statutory interest and penal interest, the respondents will deduct the amount of Rs.28, 653/- as was paid to the petitioner on 24.11.2004 and the balance amount will be paid to the petitioner within two months from the date of receipt/production of a copy of this order. Such payment in the name of the petitioner shall be accompanied with a calculation chart as per this order of this Court. The Director General of Police, Government of Bihar, Respondent no.2, is hereby directed to fix the responsibility and any amount of statutory interest and/or penal interest which is being now going on to be paid to the petitioner on account of inordinate delay of 18 years should be recovered from the salary/pension of the erring Superintendent of Police, Railway, who were in office from January, 1987 to January, 2004. It is, however, made clear that in any event the payment of the widow, the petitioner, of her due amount of provident fund including the statutory interest and penal interest as directed in this judgment will not be withheld on the ground of enquiry to be conducted by the Director General of Police for recovery of the amount of interest to be paid to the petitioner. Consequently, it is directed - 11 - that such payment of entire balance amount of G.P.F. along with statutory and penal interest must be made within a period of 60 days of the receipt/production of a copy of this order, failing which the amount so arrived at as on the date of part payment i.e. 24.11.2004 shall earn further penal interest @ 5 1/2 % p.a. from 24.11.2004 till the date of its acutual payment to the petitioner. With the aforementioned observation and direction this application is disposed of. Let a copy of this order be given to the counsel for the respondents for its immediate compliance. sudip ( Mihir Kumar Jha,J )