Central Administrative Tribunal - Delhi
Sh. Raghunath Lal vs The Accountant General (A&E) on 13 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2861 of 2011 Orders reserved on : 03.04.2012 Orders pronounced on : 13.04.2012 Honble Dr. Dharam Paul Sharma, Member (J) Sh. Raghunath Lal S/o Late Sh. Harbhagwan Dass Age about 64 years R/o Flat No.73, Sanskrit Nagar, Sector-14, Rohini, Delhi-110085. .... Applicant ( Applicant in person ) VERSUS 1. The Accountant General (A&E), Haryana, Lekha Bhawan, Plot No.4, Sector 33B, Chandigarh-160020. 2. The Comptroller & Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi-110002. .. Respondents ( By Advocate : Shri A.K. Singh ) O R D E R
The applicant has been denied by the respondents interest on an amount of Rs.21,000/- deposited by him in his GPF Account No.HR/PWD/14442 for the reason that his deposit was in contravention of the Government of India, Ministry of Finance, Department of Expenditure, New Delhi, instructions dated 14.10.1997 and 16.4.1998 providing for payment of arrears of pay revision in cash and as such, no interest is payable on the unauthorized amount deposited by the applicant in his GPF account. The respondents orders to this effect dated 20.4.2010, 20.8.2009, 19.5.2009, 19.3.2009, 11.6.2007 and 24.4.2007, as at Annexure A collectively, in response to various representations of the applicant are being assailed in these proceedings.
2. The applicant has worked out the interest so payable from February, 1998 to the date of filing of this Application at Rs.77,801/-. He seeks direction for payment of this amount along with interest upto the date of actual payment.
3. The applicant who had been working as Senior Divisional Accounts Officer under the administrative control of the Accountant General (A&E), Haryana, Chandigarh, retired on 28.2.2007 from the Office of the Executive Engineer, Upper Yamuna River Division, 3-Sham Nath Marg, Delhi.
4. In February, 1998, the applicant received arrears of pay and allowances on account of revision of pay scales w.e.f. 1.1.1996 from the Executive Engineer, Upper Yamuna River Division, 3-Sham Nath Marg, Delhi. Out of the amount of the arrears paid to the applicant, he deposited a sum of Rs.21,000/- in his GPF account with the Accountant General (A&E), Haryana, Chandigarh through the Executive Engineer, Upper Yamuna River Division, 3-Sham Nath Marg, Delhi. This amount of Rs.21,000/- was duly accepted by the Accountant General (A&E), Haryana, Chandigarh in February 1998 and duly incorporated in the applicants GPF account statement for the year 1997-1998 issued by that office.
5. The interest on this amount was also allowed in the year 1997-1998 by the said office in applicants GPF statement issued to the applicant by the said office. From the year 1997-98 to the year 2005-06, interest was duly allowed to the applicant regularly every year in the yearwise GPF statements issued to the applicant by the said Office. However, at the time of retirement of the applicant while making payment of his GPF account, he was paid Rs.49,444/- less by the respondents for the reason that the amount of arrears of Rs.21,000/- deposited by the applicant in his GPF account was to be paid in cash and as such this deposit in GPF is unauthorized and as such interest is not admissible on this deposit. It has also been claimed by the respondents that the applicant made deposit in excess of the permissible limit and on this count also the applicant is not entitled to any interest on such deposit. The applicant has further worked out interest on this count at the rate of 12% which came to Rs.28,357/- at the time of filing of this Application. Thus the applicant claims that total a sum of Rs.77801/- (Rs.49,444.00 + Rs.28,357.00) is yet to be paid to the applicant by the respondents along with interest until the disposal of this Application and actual payment in pursuance thereof to the applicant.
6. The applicant made repeated representations to the respondents in this regard but of no avail. Feeling aggrieved, he has filed the present Application. Though the applicant has stated in para 3 of the Application that it is within the time prescribed under Section 21 of the Administrative Tribunals Act, 1985 yet by way of abundant precaution, he has filed MA 409/2012 seeking condonation of delay in filing the Original Application for the reasons mentioned therein.
7. While opposing the applicants claim in the counter reply, the respondents have substantially taken up the same grounds on which the applicant has been denied interest in the impugned orders, namely, the deposit was contrary to the instructions of Ministry of Finance which provided payment of arrears in cash and the deposit being in excess of permissible limit. The respondents have also filed an additional affidavit explaining the circumstances in which deposit made by the applicant has been treated as unauthorized on which no interest is permissible. The respondents have also filed an additional affidavit explaining the circumstances in which deposit made by the applicant has been treated as unauthorized on which no interest is permissible.
8. The same arguments were advanced by the respective parties at the hearing as well.
9. I have carefully considered the submissions made by counsel for the respective parties. I have also carefully perused the records of the case.
10. The controversy between the parties is confined to a narrow compass, namely, whether the applicant is entitled to the interest on the amount of Rs.21,000/- deposited by him in his GPF account in February, 1998, out of the arrears received upon revision of pay scale.
11. It is relevant to note in this regard that the Office of the Executive Engineer, Delhi, through whom the applicant has deposited this amount in GPF account being the proper channel as also recommended the respondent no.1 for payment of interest. It may be relevant to note in this regard that the letter dated 7.2.2007, as at Annexure-D. It will be expedient to reproduce this letter in entirety as follows:-
No. 922/PF Dated : 7-2-/07 To He Accountant General (A&E) Haryana, Plot No. 4 & 5, Sector 33-B, CHANDIGARH-160020. Sub: Final payment of GPF to Sh.Raghunath Lal Sr. DAO (HR/PWD/14442) D.O.R. 28.2.07 Ref: Your office letter No.: Funds 28/1595 Dt. 29.1.07
In this regard it is intimated that this division is a State Govt. office whereas Sh.Raghunath Lal Sr.D.A.O. is a Central Govt. employee under the Administrative control of your office. As such as the authorities/letters concerning such instructions of Central Govt. must be available with your office which may be linked to decide the issue.
However, as enquired from the Sr.D.A.O. that he has submitted that as per Govt. of India, Ministry of Finance, Deptt. of Expenditure (Pay Commission Implementation Cell) letter No.: 50(2)/97/IC-I dt. 14.10.97 and No:50(2)98/IC-I Dt. 16.4.1998 the disbursement of arrear of pay and allowances for the period from 1.1.1996 to 30.9.97 was to be paid in cash in two installments computing the arrear after deductions of the subscription to the General Provident Fund at the enhanced rates. As such the subscription to the GPF at the enhanced rates was to deducted and accordingly the Sr.D.A.O. deposited the part of the arrear in the GP Fund and as such the interest on such deposit is admissible to him. Copy of the above letter Dt. 16.4.1998 is attached herewith and copy of letter dt. 14.10.97 may be traced and linked in your office as the same is not available with him.
It is further mentioned that the arrear of Rs.21000/- was deposited by the Sr.D.A.O. in his GP Fund account in 2/98 and interest was also allowed to him on the amount in that G.P. Fund statement for the year 1997-98. Moreover, the interest was allowed to him continuously for the last eight years i.e. upto his last G.P. Fund statement and disallowing of the interest at this stage is not justified. If the interest was not admissible then the same should have been disallowed at the very first stage and the official should have been intimated about the same at that time. Had the official been got such intimation from your office at that time then he should have withdrawn this amount from G.P. Fund deposits and invested in some other Govt. Interest Bearing Savings which he could not do so because interest was allowed by your office and no intimation to the contrary was received from your office.
It is worth to mention here that when the officer has deposited the amount and Govt. has kept that amount then the official is entitled for the interest on his deposit and denial of interest to him at this stage will be injustice to him, when the Govt. has kept & used his deposits.
It is, therefore, requested that case may be reviewed and interest on the deposits may be authorise for payment to avoid any delay into the matter.
An early action into the matter is requested please.
Sd/-
Executive Engineer, Delhi W.S. Division, Delhi
12. The Office Memorandum dated 16.4.1998 by the Ministry of Finance on which much reliance has been placed by the respondents reads as follows:-
OFFICE MEMORANDUM Subject : Implementation of the Fifth Central Pay Commission recommendations - Release of second instalment of arrears of pay and allowances Instructions regarding.
Instructions were issued in this Departments Office Memorandum No.50(2)/97/IC-I dated October 14, 1997 in regard to fixation of pay in the revised scales of pay recommended by the Fifth Central Pay Commission and the disbursement of arrears of pay and allowances for the period from January 1, 1996 to September 30, 1997. In terms of para 2 (ii) thereof, in cases where the aggregate arrears computed after deduction of the subscription to the General Provident Fund at the enhanced rates worked out to more than Rs.5,000 the arrears were to be paid in cash in two instalments, the first instelment being restricted to Rs.5,000 plus 50 per cent of the balance amounts. Orders in regard to the payment of the second instalment were to be issued separately.
It has been decided that the second and final instalment of arrears of pay and allowances may be disbursed in case to all Central Government employees along with their salary for the month of May, 1998, after deducting Income Tax as due in accordance with the instructions ion the subject. In drawing and disbursing the arrear claims, the requirements prescribed in the Receipt and Payment Rules as well as the instructions relating to treasury checks of such claims issued from time to time may be duly fulfilled and observed.
There may also be a few instructions where even the first instalment of arrears of pay and allowances had not been drawn and disbursed during 1997-98 as envisaged by individual drawing and disbursing officers for various administrative reasons. It is clarified that the entire arrears due and admissible in all such cases can be released in lumpsum in a single instalment after effecting the deductions on account of Income Tax and observing the prescribed checks.
13. Rules 8 and 11 of the General Provident Fund (Central Services) Rules, 1960 respectively deal with rate of subscription and interest and are relevant in the present context. These Rules read as follows:-
8. Rates of subscription (1) The amount of subscription shall be fixed by the subscriber himself, subject to the following conditions namely:-
(a) It shall be expressed in whole rupees.
(b) It may be any sum, so expressed, not less than 6 per cent of his emoluments, and not more than his total emoluments:
Provided that in case of a subscriber who has previously been subscribing to a Government Contributory Provident Fund at the higher rate of 8 -1/3 per cent, it may be any sum so expressed not less than 8 -1/3 per cent of his emoluments and not more than his total emoluments.
(c) When a Government servant elects to subscribe at the minimum rate of 6 per cent or 8-1/3 per cent, as case may be, the fraction of a rupee will be rounded off to the nearest whole rupee, 50 n.p. counting as the next higher rupee.
(2) For the purpose of sub-rule (1) emoluments of a subscriber shall be-
(a) in the case of subscriber who was in Government service on the 31st March of the preceding year, the emoluments to which he w is entitled on the date.
Provided that-
(i) if the subscriber was on leave on the said date and elected to subscribe during such leave or was under suspension on the said date, his emoluments shall be the emoluments to which he was entitled on the first day after his return to duty;
(ii) if the subscriber was on deputation out of India on the said date or was on leave on the said date and continues to be on leave and has elected to subscribe during such leave, his emoluments shall be the emoluments to which he would have been entitled had he been on duty in India;
(b) in the case of a subscriber who was not in Government service on 31st March of the preceding year, the emoluments to which he was entitled on the day he joins the Fund. 11. Interest (1) Subject to the provisions of sub-rule (5) Government shall pay to the credit of the accounts of a subscriber interest at such rate as may be determined for each year according to the method of calculation prescribed from time to time by the Government of India :
Provided that, if the rate of interest determined for a year is less than 4 per cent, all subscribers to the Fund in the year preceding that for which the rate has for the first time been fixed at less than 4 per cent, shall be allowed interest at 4 per cent:
Provided further that a subscriber who was perviously subscribing to any other provident fund of the Central Government and whose subscriptions, together with interest thereon, has been transferred to his credit in this Fund under Rule 35, shall also be allowed interest at 4 per cent if he had been receiving that rate of interest under the rules of such other Fund under a provision similar to that of the first proviso to this rule.
(2) Interest shall be credited with effect from last day in each year in the following manner:
(i) on the amount to the credit of a subscriber on the last day of the preceding year, less any sums withdrawn during the current year- interest for twelve month ;
(ii) on sums withdrawn during the current year- interest from the beginning of the current year up to the last day of the month preceding the month of withdrawal;
(iii) on all sums credited to the subscriber's account after the last day of the preceding year interest from the date of deposit up to the end of the current year;
(iv) the total amount of interest shall be rounded to the nearest whole rupees (fifty naye paise counting as the next higher rupee):
Provided that when the amount standing to the credit of a subscriber has become payable, interest shall thereupon be credited under this rule in respect only of the period from the beginning of the current year or from the date of deposit as the case may be, up to the date on which the amount standing to the credit of the subscriber become payable.
(3) In this rule, the date of deposit shall in the case of a recovery from emoluments be deemed to be the first day of the month in which it is recovered, and in the case of an amount forwarded by the subscriber, shall be deemed to be the first day of the month of the receipt, if it is received by the Accounts Officer before the fifth day of that month, but it is received on or after the fifth day of that month, the first day of the next succeeding month:
Provided that where there has been a delay in the drawal of pay or leave salary and allowances of a subscriber and consequently the recovery of his subscription towards the Fund, the interest on such subscription shall be payable from the month in which the pay or leave salary of the subscriber was due under the rules, irrespective of the month in which it was actually drawn:
Provided further that in the case of an amount forwarded in accordance with the proviso to sub-rule (2) of Rule 10, the date of deposit shall be deemed to be first day of the month if it is received by the Account Officer before the fifteenth day of the month :
Provided further that where the emoluments for a month are drawn and disbursed on the last working day of the same month the date of deposit shall, in the case of recovery of his subscriptions, be deemed to be first of the succeeding month.
(4) In addition to any amount to be paid under Rules 31, 32 or 33, interest thereon up to the end of the month preceding that in which the payment is made, or upto the end of the sixth month after the month in which such amount became payable, whichever of these periods be less, shall be payable to the person to whom such amount is to be paid :
Provided that where the Accounts Officer has intimated to that person (or his agent) a date on which he is prepared to make payment in cash, or has posted a cheque in payment to that person, interest shall be payable only up to the end of the month preceding the date so intimated, or the date of posting the cheque, as the case may be :
Provided further that where the subscriber on deputation to a body corporate, owned or controlled by the Government or an autonomous organisation registered under the Societies Registration Act, 1860 is subsequently absorbed in such body corporate or organisation with effect from a retrospective date, for the purpose of calculating the interest due on the Fund accumulations of the subscriber the date of issue of the orders regarding absorption shall be deemed to be the date on which the amount to the credit of the subscriber become payable, subject, however to the condition the amount recovered as subscription during the period commencing from the date of absorption and ending with the date of issue of orders of absorption shall be deemed to be the subscription to the Fund only for the purpose of awarding interest under this sub-rule.
Note.- Payment of interest on the Fund balance beyond a period of 6 months may be authorised by :-
(a) the Head of Accounts Officer (which expression includes the Pay and Accounts Officer, where there is one) upto a period of one year; and
(b) the immediate superior to the Head of Accounts Officer (which expression includes a Controller of Accounts where there is one or the Financial Adviser to the concerned Administrative Ministry or Department) upto any period;
after he has personally satisfied himself that the delay in payment was occasioned by circumstances beyond the control of the subscriber or the persons to whom such payment was to be made, and in every such case the administrative delay involved in the matter shall be fully investigated and action, if any required, taken.
(5) Interest shall not be credited to the account of a subscriber who informs the Accounts Officers that he does not wish to receive it; but if he subsequently asks for interest, it shall be credited with effect from the first day of the year in which he asks for it.
(6) The interest on amounts which under sub-rule (3) of Rule 10 2[ ] Rule 31 or Rule 32 are replaced to the credit of the subscriber in the Fund, shall be calculated at such rates as may be successively prescribed under sub-rule (1) of this rule and so far as may be in the manner described in this rule.
(7) In the case of 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 subscriber. If the total amount to be recovered is more than half of the subscriber's emoluments recoveries shall be made in monthly installments of moieties of his emoluments, till the entire amount together with interest is recovered. For this sub-rule the rate of interest to be charged on overdrawn amount would be 2 = % over and above the normal rate on Provident fund balance under sub-rule (1). The interest realised on the overdrawn amount shall be credited to Government account under a distinct subhead an interest on overdrawal from Provident fund under the Head 049 - Interest -Receipt C-Other interest receipts of Central Government other Receipts.
14. A careful perusal of the aforesaid would reveal that the Ministry of Finance instructions have been primarily directed towards prescribing manner of payment of arrears of revised pay. The question as to deposit in GPF whether difference of arrears or otherwise is to be regulated by the provisions of the GPF Rules.
15. The learned counsel for the respondents relied upon provisions of clause 8 (1) (b) of the GPF Rules and submitted that the applicant could not have subscribed more than 6% of his emoluments. This submission is ex facie misconceived for 6% is minimum contribution that is required to be made in the GPF and not the maximum one. The maximum one is provided in the proviso to Rule 8 (1) (b), namely not more than his total emoluments. The expression emoluments of the subscriber for the purpose of sub rule (1) of Rule 8 of the GPF Rules has been defined in sub rule (2) of the said Rule. Accordingly, the emoluments of a subscriber shall be the emoluments to which the subscriber was entitled on the last date of preceding year i.e. 31st March of the preceding year. While holding the view that the applicant had made subscription in excess the prescribed limit, the respondents have erred in taking into consideration his pre-revised pay. Admittedly, if revised pay is taken into consideration then deposit cannot be said to be in excess of the total emoluments of the applicant to which he was entitled. It may be relevant to note in this regard that the pay to be taken into consideration for the purpose of determining the subscription in the pay which is due to the subscriber. Reference in this regard may be made to the Government of India, Ministry of Finance, O.M. No.F.16(5)-E. V (B)/74, dated the 14th October, 1974, which provides as follows:-
As a result of the revision of the pay-scales, the arrears of Provident Fund subscription would become due from the month of March, 1973, payable in April, 1973, in respect of such of the Government servants as were subscribing to their Provident Fund Accounts at the minimum rate prescribed under the rules. A doubt has arisen as to from which date the interest would be payable in respect of such arrears. It is clarified that under the first proviso to Rule 11 (3) of GPF (CS) Rules and the corresponding provision under the CPF (India) Rules, 1962, interest on the arrears of subscription should be payable from the month in which the pay under the Revised Pay Rules was due irrespective of the month in which such arrears are actually credited.
16. Furthermore, the grant of interest of PF deposit is regulated by the provisions of Rule 11. Accordingly, the interest at the prescribed rate is paid on the amount to the credit of a subscriber on the last date of the preceding year. There is nothing in the rules providing for denial of such interest as has been done by the respondents in the present case. There is no fault on the part of the applicant. The respondents cannot be allowed to have unjust enrichment at the cost of the applicant. It needs to be borne in mind the principles underlying the provisions of Sections 65, 70 and 72 of the Indian Contract Act in this regard whereby a person receiving an advantage under a void agreement or obligation of person enjoying benefit of non-gratuitous act or liability of person to whom money is paid by mistake so as to entail a duty to make compensation to the giver as the case may be.
17. In the facts and circumstances and for the reasons stated above, this Application is allowed. The respondent no.1 is directed to make payment of interest to the applicant on the amount of deposit in question at the rate(s) as may have been sanctioned on PF deposits from time to time. No costs.
(Dr. Dharam Paul Sharma) Member (J) /ravi/