Badri Prasad Sharma vs State of M.P. and Others

P.K. Jaiswal, J.

The petitioner is aggrieved by the order of recovery dated 13-3-03 issued by respondent No. 3 for recovering the amount of Rs. 13,709/- at the rate of Rs. 132/- per month retrospectively from the month of February, 1988 with penal interest on the ground that excess drawal was made by the petitioner from his GPF Account No. ED/NMP/46870.

The petitioner while working as Head Master at Govt. Higher Secondary School, Mohna, District Gwalior, retired from service on 31-8-88. After retirement of the petitioner, the respondents paid all retiral benefits such as gratuity, P.F. etc. and a no dues certificate was also issued in his favour and on that basis pension of the petitioner has been sanctioned and he is getting his pension since 1-9-89. G.P.F. final payment case of the petitioner was forwarded by the employer on 27-7-1989; whereas the petitioner was retired on 31-1-88. During investigation, it was found that due to excess drawal, there was a negative balance of Rs. 13,709/- including interest upto 10/89, in the G.P.F. Account of the petitioner, which was recoverable from the petitioner. The respondent No. 3 issued letters dated 21-3-1989 asking the Department to confirm the deposits and drawals. Thereafter, the case of the petitioner has been reviewed and all drawals and credits have been got confirmed from the Department and the case of the petitioner has been re-examined and it was found that a negative balance of Rs. 8,962/- including interest upto 12/96 recoverable from the petitioner with penal interest at the rate of 14.5% in terms of Rule 14(7) of the M.P. G.P.F. Rules, 1955. Respondent No. 3 vide impugned communication-cum-order dated 22-12-99 (Annexure A-l) intimated the petitioner and respondent No. 2.

It is contended by the learned Counsel for the petitioner that before passing the impugned communication/order dated 13-3-03, no opportunity of hearing was given to the petitioner nor he received letters dated 7-3-1990, 22-3-1990 and 5-6-1990 nor the respondent No. 2 Department ever intimated the petitioner about the alleged recovery and, therefore, the impugned action of the respondent No. 3 is in violation of the principle of natural justice. On merit, it is stated by the petitioner that he had not drawn excess amount from his G.P.F. account.

The respondent No. 3 in its return submitted that in view of non-mentioning of any withdrawal in the G.P.F. Pass Book of the petitioner, which is unverified prior to 1974-75, the spot verification was got done from the departmental record available with Principal, Govt. Higher Secondary School, Mohna, District Gwalior where the petitioner was posted at the relevant time. It is submitted that after taking into account the information now received, the G.P.F. account of the petitioner has been reviewed carefully. As a result of excess drawals made by the petitioner from his G.P.F. account, a negative balance of Rs. 8,962/- has been worked out afresh as on his date of retirement, i.e., 31-1-88. This amount of Rs. 8,962/- is liable, to increase further with the addition of penal interest @ 2-1/2 % alongwith rate of interest as applicable from time to time in terms of Rule 14(7) of the M.P.G.P.F. Rules, 1955. The calculation and comparative statement of year wise deposits and withdrawals on the basis of record of respondent No. 3 and pass book of the petitioner and the list of part final withdrawal furnished by the department are Annexures R-l and R-2 respectively.

It is further submitted by the respondent No. 3 that from the calculation filed as Annexure R-l, the petitioner has made the drawals from the year 1970-71 to 1987-88 of total Rs. 55,705/-. It is further submitted that in response to this respondent''s letter dated 5-12-89, the petitioner in his reply dated 15-12-89 had not included the drawals of Rs. 3,000/- in 5/81 as stated in Para 2 of the return. However, this drawal has been conformed by the department. It is submitted that the drawals as mentioned in Para 4 of the return have neither been shown or deducted in the pass book of the petitioner. It is relevant to mention here that the petitioner was aware of negative balance in his G.P. Fund account as shown in the account slips issued by the respondent for the year 1983-84 onwards.

The decisions cited by the learned Counsel for the petitioner in the cases of The State of Karnataka and Another Vs. Mangalore University Non-Teaching Employees Association and Others, , Sahib Ram v. State of haryana and Ors. 1995 (1) SCC 18, Union of India and another Vs. G. Ganayutham (Dead) by LRs., , the decisions of this Court in the case of S.C. Dubey v. State of M.P. 2006 (I) MPWN 37 and Chandrakant v. State of M.P. 2005 (II) MPWN 74, will not be applicable in the present facts and circumstances of the case. In the case of Sahib Ram (supra), the Apex Court has held that since the date of regularization, the appellant was paid his salary on the revised scale, however, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him, but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. It was further held that under the circumstances, the amount paid till date may not be recovered from the employee concerned.

The question of following natural justice and granting opportunity of hearing has to be considered in the facts and circumstances of each case and it cannot be applied as a thumb rule in each and every case. Whenever a question with regard to grant of opportunity is to be considered by this Court, this Court has to take note of the reasons given for taking a particular action and the requirement of following the principles of natural justice is to be considered in the backdrop of the aforesaid reasons. In doing so, cases differ on facts, and therefore, in each and every case merely because opportunity is not granted, action cannot be held to be illegal.

In the instant case, the excess drawal was made by the petitioner from his GPF account and, therefore, the respondents have not committed any error in order for recovering the amount under Rule 14(7) of the M.P. G.P.F. Rules, 1955.

The petition filed by the petitioner has no merit and is accordingly dismissed but without any order as to costs.