HON’BLE SRI JUSTICE GODA RAGHURAM AND HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 25264 OF 2002 Dated 6TH FEBRUAJRY, 2008 Between Syed Abdullah …Petitioner and Union of India, rep. By Accountant General of AP, Saifabad, Hyderabad, and, ors …Respondents. THE HON’BLE Mr. JUSTICE GODA RAGHURAM AND THE HON'BLE Mr. JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 25264 OF 2007 ORDER: ( Per GR.J.) The petitioner is a retired judicial officer. This Writ Petition is filed for a direction to the respondents 1 to 3 for payment of GPF and other service benefits, which were withheld and kept in abeyance since his retirement from June, 2004. The petitioner entered judicial service of the State of Andhra Pradesh in the year 1976, and, served till 30-6-2004. By the time of the retirement as District Judge Grade-I, his Pay was fixed in the Selection Grade in the cadre of District Judge. During service, the petitioner contributed to the General Provident Fund, which is in the administrative custody of the first respondent, bearing Account No. 8232/Judicial. On 21-4-2004, in anticipation of superannuation, the petitioner applied to the Unit Head, the High Court of Andhra Pradesh for final payment of the GPF accumulations, which in turn was forwarded to the first respondent for issuance of requisite authorization to enable drawal of the accumulated amounts in the petitioner’s GPF account. The High Court sensitized the first respondent on the petitioner’s application. High Court also issued a reminder dated 16-7- 2004 to the second respondent and the second respondent through the Law Department, forwarded the petitioner’s application to the first respondent vide letter dated 24-5-2004 for issuance of authorization for drawal of the petitioner’s GPF amount. It is submitted that in spite of several representations/reminders as well as letters from the Law Department, vide communication dated 24-5-2004 of the first respondent, illegally and without any authority of law withheld the petitioner’s GPF and authorization for drawal of the accumulated amounts in GPF account, which could not have been withheld without any reasons, is the complaint in this Writ petition. In paragraph 6 of the affidavit the petitioner has pleaded that after retirement, he had fixed the marriage of his daughter on 23-4-2004 and on account of withholding of these funds, he suffered financial crisis and other mental agony. He claims to have borrowed funds to celebrate the marriage of his daughter and he is repaying the loan taken for the purpose. The petitioner sent representation dated 8-9- 2004 to the first respondent through the High Court beseeching expeditious release of the amounts due to him, but without resonance. Responding to one of the representations of the petitioner dated 2-11-2004 (complaining of withholding of the amounts to the credit of his GPF account and seeking its payment), first respondent addressed the petitioner vide letter dated 17-11-2004 stating that an amount of Rs.4,83,442/- credited to the petitioner’s GPF account in the year 2003-2004 consequent on revision of pay scales with effect from 1-1- 1996 has been kept in abeyance pursuant to the decision of the Secretary to Government, Law Department, Government of Andhra Pradesh, dated 6-10-2004 since the matter regarding pay fixation had been referred to the Supreme Court of India and the issue of releasing the withheld amount would be considered only after the final judgment is delivered by the Apex Court. From this communication of the first respondent, it should be inferred that the Law Department of the State had addressed the first respondent on 6-10-2004 to withhold the amount standing to the credit of the petitioner’s GPF account relatable to the arrears of revision of pay scales, presumable credited to the GPF account. It is not clear on what legal authority the Law Department of the State had directed to withhold the GPF amount of the petitioner. Earlier to the above letter from the first respondent also, the first respondent had been addressing the petitioner vide letters date 17-8-2004 and 20-9-2004 stating that clarification was sought from the Law Department of the State with regard to payment of GPF amount standing to the credit of the petitioner. Pursuant to the recommendations of the First National Judicial Pay Commission (FNJPC) for the Subordinate Judiciary constituted in consequence of the orders of the Supreme Court in All India Judges Association Vs. Union of India, and, recommendations of the FNJPC, the State issued orders in G.O.Ms.No. 60, dated 7-5-2003, inter alia, revising pay scales of the judicial officers, as also the components of DA, and interim relief. Certain errors in the computation of DA occurred and excess payments were made to the judicial officers in the State. The State Government thereupon filed an application, being I.A.No. 152 of 2004 in W.P.(C) No. 1022 of 1989 before the Supreme Court seeking clarification whether the Dearness Allowance already merged in the revised pay scales of 1993 and drawn by the judicial officers of the State as per the State Pay Revision Commission recommendations of 1993 with effect from 1-7-1992 with monetary benefit from 1-4-1993 should be taken into account while determining the Pay and Dearness Allowance consequent on the implementation of the FNJPC recommendations on pay scales. By an order dated 21-11-2006, the Supreme Court issued clarification on the admissibility of the benefits to the Judicial Officers ( the aspect which is not of relevance to the issues in this Writ Petition). While observing that as a necessary consequences of this clarification, the benefits will have to be revised, the apex Court observed that recoveries should be made from the judicial officers in the manner specified in its order. In respect of retired judicial officers, the Apex Court directed that the amounts which may become payable by the judicial officers should be recovered only by adjustment from the pension payable to the officers, in reasonable installments and as far as possible installments should be so fixed that the pension amount payable to the concerned officer does not get reduced by more than 10%. Clearly, after this clarification, it should have been apparent to any person reasonably instructed in law, or language that recovery if any, could only be from the pension payable to the retired officers. Either before this clarification by the Supreme Court or thereafter, was there any justification for withholding the amounts standing to the credit of the petitioner’s GPF account. GPF amount, provident fund benefits and matters relating there to, are governed by the provisions of the Provident Fund Act, 1925. Section 3 of this Act ordains that while compulsory deposit in any Government or Railway Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree of any Civil, Revenue or Criminal Court in respect of any debt or liability incurred by the subscriber or depositor, and that any sum standing to the credit of any subscriber to, or depositor in, any such fund shall be payable under the rules of the Act. Section 6 of the Act specifies the power to make deductions from the fund and enjoins that when the sum standing to the credit of any subscriber or depositor in any Government or Railway Provident Fund, which is a contributory Provident Fund becomes payable, there may, if the authority specified in this behalf in the Rules of the Fund so directs, be deducted therefrom and paid to the Government or railway administration as the case may be, the legitimate deductions made under the provisions of this Act or any amount due under a liability incurred by the subscriber or depositor to the Government, but, subject (as stated in Section 6) to a direction by the authority specified in this behalf in the rules of the Act. No such direction of the competent authority existed legitimizing withholding of the funds in the GPF account of the petitioner. The first respondent therefore acted wholly without the authority of law, arbitrarily and even without the minimum care and duty required of a statutory/public authority, in withholding the GPF amounts of the petitioner. It is not the case of the respondents, in particular of the first respondent, that there was any authority or any lawful justification to withhold the petitioner’s GPF amount. What all that is pleaded in the counter affidavit filed on behalf of the first respondent, by Mr. A.V.Rajasekhar, describing him as a Deputy Accountant General (Funds), is that as re-fixation of pay, DA and interim relief was not done and /or no order of such re-fixation was received from the High court and as the earlier (erroneous) fixation was the basis for the credit into GPF account of the petitioner, the first respondent did not release the GPF amount and would release the same as and when re-fixation (order) is received from the High Court. This plea on behalf of the first respondent is not only extraordinary, but entirely contrary to the legislative mandate contained in the Provident Funds Act, 1925. The administrative illegality is compounded by specific pleadings. They have taken a stand in Paragraphs 7 to 11 that without clarification/authorization from the Law Department, on a request from the High Court, the petitioner’s GPF amount would not be released. When the matter is taken up to day, on behalf of the first respondent, an order of the Law Department dated 4-2-2008 addressed to the first respondent is placed for the perusal of this Court. This letter of the Law Department also makes curious reading. This communication from the Law Department to the first respondent states that pursuant to the order of the Supreme Court, dated 21-11-2006 (to which a reference has been made earlier in this order) the State Government had issued orders in G.O.Ms.No. 111, dated 21-8-2007 for revising the pay fixation and recoveries of excess amounts paid if any as per the conditions laid down therein, and, therefore, the Law Department authorizes release of the amount standing to the credit of the retired judicial officers in their respective General Provident Fund Accounts together with interest thereon immediately. Even if such authorization from the Law Department is required under any law or any instrument or practice having the insignia of law (this Court is not apprised of any such illegal requirement or extant procedure) it was incumbent for the Law Department of the State to have issued such an authorization forthwith upon the orders of the Supreme Court dated 21-11-2006. Why such authorization was not issued till February, 2008 is not clear. Consequent on the above order of the Law Department, the first respondent issued a communication dated 5-2-2008 to the District & Sessions Judge, East Godavari District, intimating authorization to draw the specified amount representing the entire residual amounts in credit in the petitioner’s GPF account. It is represented by the learned Standing Counsel, representing the first respondent that an amount of Rs.6,79,913/- enumerated in the first respondent’s order dated 5-2-2008 represents the principal amount standing to the credit of the petitioner’s GPF account + interest payable from the date on which it has become due till date. This statement is recorded. In view of the irrelevant and arbitrary administrative conduct of the respondents and in particular of the first respondent, it is required to place on record that none of the respondents had a scintilla of justification for failing to perform the respective administrative obligations of giving clearance/clarification/ sanction for the payment of the GPF amounts expeditiously after the petitioner’s retirement. No justification is available for the inordinate delay even after 21-11-2006, the date the Supreme Court clarified by its order in I.A.No.152 of 2004 that recovery of any excess amount should be made from the pensionary benefits of the retired judicial officer. Indeed, it is an indefensible and callous administrative conduct that needs to be deprecated. The petitioner has suffered clearly injury in consequence of such arbitrary action of the respondents. As the amounts have now been paid, qua the communication dated 5-2-2008, the relief sought by the petitioner in so far as it relates to the GPF amounts need not be granted in the Writ Petition. There are other terminal benefits payable to the petitioner such as commuted pension etc., It is conjointly represented by the learned Standing Counsel appearing for the Central Government, the learned Government Pleader and the learned Standing counsel appearing for the High Court that the amounts representing all terminal benefits due and payable to the petitioner will be sanctioned and paid to the petitioner within a period of sixty days from today. This undertaking on behalf of the respondents is recorded. As the petitioner has been unjustly deprived of the GPF amount and without any authority of law, this Court considers it appropriate to allow the Writ Petition, with costs of Rs.5000/- (Rupees five thousand only) payable jointly and severally by the respondents, to the petitioner, within a period of thirty days from today. The learned Central Government Standing counsel, Sri P.Venugopal and the learned Government Pleader for GAD and Finance are present and have noted this order. This will constitute sufficient notice to the respondents of their obligations to pay the costs recorded herein. ------------------------------- JUSTICE GODA RAGHURAM ---------------------------------- JUSTICE R. SUBHASH REDDY DATE: 06-02-2008 Msnr.