IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1316 of 2002 1. THE STATE OF BIHAR 2. District Provident Fund Officer, Patna 3. Director, Elementary Education, Bihar, Patna 4. District Statement of Education, Patna … Respondents/Appellants Versus RAM PAVITRA SINGH, son of late Meghan Singh, resident of village Darbeshpura, P.S. Barh, District Patna … Petitioner/ Respondent. with LPA No.243 of 2010 SUDHA KUMARI W/O LATE SAGAR MAHTO R/O VILL.- CHOWKI, P.S.- CHOWKI, DISTT.- BEGUSARAI, AT PRESENT R/O VILL.- KIRANPUR, P.S.- MADANI CHOWK, DISTT.- LAKHISARAI ... Petitioner/ Appellant. Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER MUNGER DIVISION, MUNGER 3. THE DISTRICT SUPERINTENDENT OF EDUCATION KHAGARIA, DISTT.- KHAGARIA 4. THE DISTRICT PROVIDENT FUND OFFICER KHAGARIA, DISTT.- KHAGARIA … Respondents/Respondents ----------- For the Appellant : Mr. Alok Kumar, Advocate (In L.P.A. No. 1316/2002) : Mr. Uma Kant Shukla, Advocate (In L.P.A. No. 243/2010) For the Respondents : Present : HON'BLE THE CHIEF JUSTICE HON'BLE MIHIR KUMAR JHA, J. As per Mihir Kumar Jha, J. . 1. Heard counsel for the parties. 2. In both the appeals, which have been heard together, a common question arises for consideration, 2 namely, as to whether the State and its officials are bound to pay up-to-date statutory interest on accumulation of the amount of an employee under General Provident Fund till the date of its actual payment. L.P.A. No. 1316/2002 3. L.P.A. No. 1316/2002 in fact arises out of an order dated 29.11.2002 in C.W.J.C.No. 10410/2002 whereby and whereunder a direction was issued for payment of statutory interest on the amount of provident fund of the respondent writ petitioner Ram Pavitra Singh, who had retired from service while holding the post of Assistant Teacher on 31.3.1989. 4. It is the case of the appellants State of Bihar and its officials that though the respondent writ petitioner had retired on 31.3.1989 but he had filed his application for withdrawal of the G.P.F. amount only on 31.10.2002 and as such, an authorization for payment of G.P.F. amount was issued on 14.11.2002 alongwith the interest calculated for the period upto 30.9.1989 i.e. for a period of six months from the date of his retirement in terms of 3 Rule 14(4) of the Bihar General Provident Fund Rules 1946 hereinafter referred to as G.P.F. Rules. 5. Counsel for the appellants in this context has also contended that in the present case there was no lache or lapse on the part of the officials of the State, inasmuch as the respondent writ petitioner was required to file an application for final withdrawal of his amount of G.P.F. and when he himself had delayed it over a period of 13 years and had filed the same only on 14.11.2002 it cannot be said that the State would also be liable to pay interest beyond a period of six months from the date of retirement in terms of the Pension Rules. 6. Per contra, learned counsel for the respondent writ petitioner has submitted that it is not correct to say that the application for withdrawal of G.P.F. amount was filed by writ petitioner on 14.11.2002 and in fact the appellants have tried to make out a new case before this appellate Court by producing a document which was not placed before the learned Single Judge in the counter affidavit filed by the appellants. In this context he has drawn our attention to that very application of the 4 respondent writ petitioner showing that such application for a final withdrawal of his G.P.F. amount was received in the office of the District Superintendent of Education well within six months from the date of his retirement i.e. on 6.7.1989. 7. This Court on a close perusal of the materials on record including the counter affidavit filed by the appellants in the connected writ application would find that neither the respondents had annexed the document, as contained in Annexure 1 to the Memo of Appeal, the application filed by the respondent writ petitioner for final withdrawal of G.P.F. amount nor any firm date of filing of such application was mentioned in such counter affidavit. In this context the only relevant paragraph of the counter affidavit reads as follows:- “7. That in this case petitioner had not filed his application within six months after his retirement rather in fact on the application date has not been given by the petitioner and the application of petitioner was received in the office of this deponent on 14.11.2002 and the same day the authority slip was issued by this deponent.” 5 8. Such counter affidavit was also filed by the District Provident Fund Officer and not by the District Superintendent of Education, Patna, who was the controlling authority of the petitioner before whom the Respondent writ petitioner as per G.P.F. Rules was required to file his application for final withdrawal and had also done so as is now apparent from the copy of Annexure-1 to this memo of appeal. In fact in the separate counter affidavit filed on behalf of the District Superintendent of Education no such plea of delayed filing of the application for final withdrawal of the G.P.F. was mentioned therein. 9. Consequently when this Court has found that the said application for final withdrawal filed by the respondent writ petitioner was received in the office of the District Superintendent of Education on 6.7.1989, if the said authority had consumed a period of 13 years in forwarding his application, the same cannot enure to the benefit of the appellants by seeking protection under Rule 14 of the Bihar G.P.F. Rules, 1948. It has to be noted here that the writ application of the respondent writ 6 petitioner claiming payment of G.P.F. with up-to-date interest was filed on 13.9.2002 and only thereafter the D.S.E. woke up from his slumber and had forwarded the same to the District Provident Fund Officer on 14.11.2002. This part of the finding of this Court that the application of the respondent writ petitioner in fact was received in the office of the District Superintendent of Education, Patna on 6.7.1989 gets further confirmed from the endorsement made by the Block Education Extension Officer, who on its being sent to him in capacity of the head of the office had issued a certificate on 31.10.2002 that in the last 12 months the respondent writ petitioner was not sanctioned any advance from his G.P.F. account. If the plea of the appellants as projected in the appeal is accepted that the respondent writ petitioner had filed his application on 31.10.2002 there could have been no mention of the date 6.7.1989 on the top of the application and thus, it becomes absolutely clear that only after filing of the writ application on 13.9.2002, the Block Education Extension Officer, Pandarak had put his signature on the said application 7 and thereafter the D.S.E., Patna on 14.11.2002 had recommended for payment to the District Provident Fund Officer, Patna whereafter only such payment was ultimately made by the District Provident Fund Officer on 14.11.2002. 10. In the factual premises of this case there would be no need to go into the question of interpretation of Rule 14 of the G.P.F. Rules or to the circulars dated 9.5.1988 and 5.3.2001, inasmuch as the State Government has repeatedly insisted that the delay by the authority in making payment of provident fund would not deprive the employee in getting the benefit of payment of interest. This aspect of the matter in fact has been clarified by the Finance Commissioner of the State of Bihar in his circular dated 5.3.2001 while explaining the scope of the earlier circular dated 6th May, 1988 on the subject wherein it has been clearly stipulated that the interest beyond a period of six months will not be paid only in such case where the application was filed after a period of six months. In this context from the reading of the circular dated 5.3.2001 it is quite explicit that if after 8 receipt of the application for final withdrawal of G.P .F. the delay in payment is on account of administrative lapses on the part of the Drawing and Disbursing/ sanctioning authority, the interest will be paid upto the date of payment and the amount of interest paid in excess of the period of six months will be recovered from the concerned erring officials. 11. Thus, on the facts of this case we are satisfied that the direction of the learned Single Judge in his order to pay up-to-date statutory interest i.e. from 1.4.1989 to 14.11.2002 does not suffer from any error. 12. We, however, having decided this case on its facts would modify the impugned order to the extent that neither of the two circulars of the Finance Department being notification dated 6th May, 1988 (Memo No. 3373) nor the subsequent clarificatory circular contained in the Finance Commissioner‟s letter dated 5.3.2001 (Annexures „B‟ and „B/2‟ to the counter affidavit) are bad in law or in fact by themselves provide denial of statutory interest for the period after expiry of six months of the retirement of the incumbent and till the date of 9 filing of the application in all events. Both the aforesaid circulars infact are valid circulars under the normal circumstances and are inconformity with Rule 14 of the Bihar G.P.F. Rules inasmuch as the incumbents at the time of their retirement are always expected to file not only their pension papers in prescribed proforma in terms of Rule 189 of Bihar Pension Rules but also their application for final withdrawal of G.P.F. in terms of Rule 29 read with its Annexure-A in the prescribed proforma under G.P.F. Rules. 13. It is also clarified that as this appeal has been decided in its own facts, and has upheld the conclusion arrived by the learned Single Judge directing payment of interest from the date of retirement to the date of payment to the Respondent writ petitioner, it would not be deemed that we have also approved the reasonings in the earlier order of this Court in the case of Bidya Devi vs. State of Bihar, reported in 2001(1) PLJR 626, inasmuch as it is the case of the appellants themselves that the said judgment is not applicable to the instant case because in that case the Government employee had 10 died and the widow of the employee had come to this Court. The question of correctness of the judgment in the case if Bidya Devi (supra), therefore, is left open and would be gone into, if needed in any other appropriate case. 14. We would accordingly for the reasons indicated above set aside the following portion of impugned order declaring that : "Finance Department Circulars, contained in Annexure-B and B/2 are, thus, held to be bad in so far as they provide for denial of statutory interest for the period after expiry of six months of the retirement and till the date of filing of the application." 15. There infact being no relief sought for quashing of the two circulars of the State Government dated 6.5.1988 (Annexure-B) and 5.3.2001(Annexure-B/2) in the writ application nor any declaration sought to this effect therein, we find it difficult to sustain the aforesaid portion of the order. 16. Subject to our aforementioned observations and clarifications this appeal is disposed of with a 11 direction to make payment of statutory amount of interest, on G.P.F. accumulated to the respondent writ petitioner from the date of his retirement i.e. 31.3.1979 to the date of its payment i.e. 14.11.2002 within a period of three months from today, if not already paid to him earlier and to that extent the interim order dated 8.9.2004 passed in this appeal staying operation of the impugned order stands vacated. L.P.A. No. 243/2010 17. In L.P.A.No. 243/2010 the widow of late Sagar Mahto being aggrieved by an order dated 18.11.2009 in Civil Review No. 127/2009 has filed this Letters Patent Appeal making a grievance that she had not been paid statutory interest over the amount of provident fund dues of her husband and her prayer to this effect was rejected by the impugned order. 18. The only relevant fact to be noted in this context is that on 6.12.2004 the appellant-petitioner Sudha Kumari being widow of Late Sagar Mahto had filed a writ petition for payment of provident fund dues and leave encashment payable to her deceased husband 12 who had died in harness on 9.8.1992 while holding the post of Assistant Teacher. In the writ application it was her case that no amount of provident fund was paid to her. From the counter affidavit filed by the District Provident Fund Officer, Khagaria it appears that on 23.7.2005 she was authorized payment of Rs. 54,472/- which included interest only for the period August, 1992 to January, 1993 on the ground that under the G.P.F. Rules she was entitled for payment of interest for six months only. This Court after noticing the aforementioned grievance by an order dated 27.2.2009 had disposed of the connected writ petition in the following terms: “ No doubt, a counter affidavit has been filed on behalf of the District Superintendent of Education of Khagaria but surprisingly the same is silent on the issue of non-payment of GPF amount for the period 1974 to 1986. In the counter affidavit filed on behalf of the District Provident Fund Officer, Khagaria duly sworn on 20.1.2006 a statement of account giving the details of the calculation was brought out on records as Annexure A/1 but this calculation only starts from April, 13 1986 till the period 1993. The amount shown in the said chart stands paid which has also been acknowledged in the counter affidavit filed by the District Superintendent of Education. But there is still silence with regard to payment of GPF between 1974 to 1986. The Court is constraint to record that despite the affidavit of the District Superintendent of Education the matter has not been resolved. A direction is hereby issued upon the District Superintendent of Education as well as the District Provident Fund Officer that they shall take steps for preparing records of payment of GPF to the petitioner even for the period 1974 to 1986, work out the liability and make payment of the same within a period of three months from the date of communication or production of a copy of this order. The Court expects that the direction to be followed within the time frame since they have failed to file categorical affidavits in this regard despite the writ application pending since 2004 and several indulgence having been granted by the Court to state all the facts ion the counter affidavit.” 19. From the aforesaid order of this Court it 14 would be clear that even on 27.2.2009 this Court was not satisfied with regard to full payment of amount of G.P.F. of the deceased husband of the appellant writ petitioner, inasmuch as there was no calculation for the period 1974 to 1986. The appellant writ petitioner could not be held to be at fault for not maintaining month to month or year to year account of her husband of the amount of G.P.F. and in fact when she had to run to the corridors of the Secretariat even for getting her legitimate amount of G.P.F. it would be harsh for this Court to deny the payment of interest over such amount of G.P.F. of her husband. It is not in doubt that the husband of the petitioner had entered in service in the year 1974 and was regularly contributing in the provident fund till the date of his death i.e. August, 1992. In that view of the matter, if the appellant writ petitioner had sought a clarification by seeking review of the aforesaid order for also directing the respondents to make payment of statutory amount of interest over G.P.F. accumulation of the husband, the same was well covered by the circular of the State Government dated 5.3.2001 discussed above 15 in the earlier case of Ram Pavitra Singh. The lapses were clearly on the part of the controlling authorities of the husband of the appellant writ petitioner who did not make full payment of the amount of provident fund in terms of Rule 31 of G.P.F. Rules which reads as follows:- "On the death of a subscriber before the amount standing to his credit has become payable, or where the amount has become payable before payment has been made. (i) when the subscriber leaves a family- (a) if a nomination made by the subscriber in accordance with the provisions of rule 8, or of the corresponding rule heretofore in force in favour of a member or members of his family subsist, the amount standing to his credit in the Fund or the part thereof to which the nomination relates shall become payable to his nominee or nominees in the proportion specified in the nomination. (b) If no such nomination in favour of a member or members of the family of the subscriber, subsists, or if such nomination relates only to part of the amount standing to his credit in the Fund the whole amount or the part thereof to which the nomination does not relate, as the case may be, shall, not 16 withstanding any nomination purporting to be in favour of any person or persons other than a member or members of his family, become payable to the members of his family in equal shares: Provided that no share shall be payable to- (1) sons who have attained legal majority; (2) sons of a deceased son who have attained legal majority; (3) married daughters whose husbands are alive; (4) married daughters of deceased son whose husbands are alive if there is any member of the family other than those specified in clauses(1), (2), (3) and (4); Provided further that the widow or widows and child or children of a deceased son shall receive between them in equal parts only the share which that son would have received if he had survived the subscriber and had been exempted from the provisions of clause(1) of first proviso. (ii) When subscriber leaves no family, if a nomination made by him in accordance with the provisions of rule 8 of the corresponding rule heretofore in favour of any persons subsists, the 17 amount standing to his credit in the Fund or the part thereof to which nomination relates, shall become payable to his nominees in the proportion specified in the nomination." 20. The widow appellant writ petitioner being the nominee soonafter the death of her husband her claimed G.P.F. amount of her husband and though other payments were made to her, but the amount of G.P.F. in full was not paid to her. This Court accordingly would modify the impugned order dated 18.11.2009 dismissing the review application by giving a direction to the Respondents make payment of the statutory interest over the amount of provident fund from the date of death of her husband till the date of its actual payment. We would definitely clarify that the amount of interest on the sum of Rs. 54,472/- would be payable only till the date of its payment, whereas the amount of payment of interest over G.P.F. accumulation of the husband of the appellant writ petitioner for the period 1974 to 1986 will be paid from the date of entitlement i.e. August, 1992 till the date of its payment. 18 21. Let it be made clear that this Court while holding the appellant writ petitioner, the widow of Late Sagar Mahto for being entitled to receive payment of interest on the amount of G.P.F. accumulation from the date of death of her husband to the date of its actual payment is basically guided by the fact that there was no laches on the part of the appellant writ petitioner, a fact which was never denied before the learned Single Judge either in the writ petition or in the review application. In that view of the matter, it would be really harsh for this Court to approve the reasoning of the learned Single Judge that the appellant writ petitioner in her prayer in the writ petition had not claimed the amount of interest while making a prayer for payment of the amount of provident fund of her husband. The provident fund accumulation is always in two parts, namely, principal contribution and the interest thereon earned from year to year and therefore, such prayer for payment of provident fund would itself include payment of interest as well. 22. That being so, this Court would direct the respondent to pay statutory interest over provident fund 19 accumulation of the wife of the husband writ petitioner within a period of three months from the date of receipt/ production of a copy of this order. 23. With the aforementioned observations and directions, this appeal is also disposed of. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court Dated the 3rd March 2010 A.F.R./Surendra