@JUDGMENTTAG-ORDER
H.K. Sema, J.@mdashThis Civil Rule has been preferred by a Confederation of All Nagaland State Service Employees Association (CANSSEA) represented by its General Secretary praying inter alia for quashing the Government Order dated December 30, 1995 banning the withdrawal of General Provident Fund subscribed by the Government servant.
2. I have heard Mr. S. Risom assisted by Mr.G.A. Shimray, learned counsel for the petitioner as well as Mr. E. Y. Renthungo, learned Jr. Government Advocate.
3. At the outset, Mr. E. Y. Renthungo raised a preliminary objection with regard to the maintainability of the writ petition on the ground that the General Secretary cannot represent the Confederation. Secondly, that the Confederation is not recognised by the Government and therefore, the writ petition filed by them cannot be entertained. I am unable to accept the contention of Mr. E. Y. Renthungo because writ under 226 is available to a citizen who has right and that right has been infringed. If otherwise, the petitioner has succeeded that they have a right and that right has been infringed, they can definitely approach this Court for a writ under Art. 226 of the Constitution of India. Therefore, the contention of Mr. E. Y. Renthungo that the writ is not maintainable is hereby rejected.
4. The facts leading to the filing of the present writ petition is summarily recited. On December 30, 1995, Officer on Special Duty of Finance Department by W.T. Message directed all the Treasury offices to stop all Government payments except salaries and pensions for December, 1995. By another W.T. Message dated September 29, 1994, Annexure-''C'' the Under Secretary to the Government of Nagaland directed all the Departments not to forward any applications for special relaxation of G.P.F. It is stated in the application that the employees represented by this Confederation have enough G.P.F. fund credited in their account and despite having enough fund, they could not withdraw G.P.F. from their account because of this ban.
5. Counter on behalf of the respondents has been filed. It is averred in paragraph 7 of the counter that there has been excess drawal and Government seriously apprehended that such drawal might land the State Government in over draft position thereby inviting embargo from the Reserve Bank of India. It is further stated that the Government had allowed the release of G.P.F. withdrawal amounting to Rs. 109.83 lakhs in the month of March 1996 itself. Government has also filed instances as to how excess drawal has been allowed leaving the minus balance of the account of the subscribers during the year 1991-92, 1992-93, 1993-94. Such instances have been shown in Annexure-3. That the appropriate authority has allowed excess drawal of the G.P. Fund is no fault of the subscribers. The appropriate authority is expected to arrange their house in order. Such excess drawal if any cannot be without the connivance of the Treasury and Accountant General Staff. In fact, when such excess drawal is brought to the notice of the competent authority, the appropriate course would have been to order a thorough probe by an independent Agency like C.B.I. because such excess withdrawal of a colossal amount involves huge loss of money to the public exchequer and definitely it involves a matter of public interest of highest order. Having not made such exercise, it is not open to the appropriate authority to make a blanket ban order affecting other subscribers who may be having enough deposit in their account.
6. G.P. Fund is not the bounty to be distributed by the Government to its employees by exercising its discretion. G.P.F. is the money belonging to the employees and the Government is only its custodian, Therefore, drawal of G.P. Fund is the right in the hands of the subscriber and that right cannot be curtailed, of course subject to availability of fund in his account.
7. Rule 12 of the General provident Fund (Central Services) Rules provided advance from the fund under the following circumstances :
(a) to pay expenses in connection with the illness, confinement or a disability, including where necessary, the travelling expenses of the subscriber and members of his family or any person actually dependent on him:
(b) to meet cost of higher education, including where necessary, the travelling expenses of the subscriber and members of his family or any person actually dependent on him in the following cases, namely:
(i) for education outside India for academic, technical, professional or vocational course beyond the High School stage; and
(ii) for any medical, engineering or other technical or specialised course in India beyond the High School stage, provided that the course of study is for not less than three years;
(c) to pay obligatory expenses on a scale appropriate to the subcriber''s status which by customary usage the subscriber has to incur in connection with betrothal or marriages, funerals or other ceremonies;
(d) to meet the cost of legal proceedings instituted by or against the subscriber, any member of his family or any person actually dependent upon him, the advance in this case being available in addition to any advance admissible for the same purpose from any other Government source.
(e) to meet the cost of the subcriber''s defence where he engaged a legal practitioner to defend himself in an enquiry in respect of any illegal official misconduct on his part.
(f) to meet the cost of plot or construction of a house or flat for his residence or to make any payment towards the allotment of plot or flat by the Delhi Development Authority or a State Housing Board or a House Building Cooperative Society.
8. Further Rule 15 of the Rules deals with withdrawal from the funds for the exigency stated therein. Rule 15-B further allows the Government servants after completion of 10 years of service or within 10 years before the date of retirement of superannuation to withdraw the amount of subscription thereon standing to the credit of subscriber for one or more of the following purposes:
(a) building or acquiring a suitable house or: ready-built flat for his residence including the cost of the site;
(b) repaying an outstanding amount on account of loan expressly taken for building or acquiring a suitable house or ready built flat for his residence;
(c) purchasing a house-site for building a house thereon for his residence or repaying any outstanding amount on account of loan; expressly taken for this purpose;
(d) reconstructing or making additions or alterations of a house or a flat already owned or acquired by a subscriber;
(e) renovating, additions or alterations or upkeep of an ancestral house at a place other than the place of duty or to a house built with the assistance of loan from Government at a place other than the place of duty;
(f) constructing a house on a site purchased under Clause (c).
9. From a fascicule reading of Rule 12 and Rule 15, it clearly appears that the subscriber can claim a temporary advance from the fund under Rule 12 which is refundable. But provision under Rule 15-A and B is aimed at to give a subcriber preretiral benefits which is non-refundable. It is common knowledge that the Government servants conserve fund in the form of G.P.F. to meet the eventualities and unforeseen circumstances as enjoined under Rule 15 and Rule 12 of the Rules. If the subscriber is denied the right to withdraw the G.P.F. (of course subject to the availability of fund), it would amount to denial of the rights. When they have a right and that right has been infringed, they can assert that right by filing application under 224 of the Constitution.
10. It is further averred in paragraph 4 of the counter of the respondents that during the year 1995-96, Government have released Rs. 17.14 crores as against Rs. 11.17 crores released in 1994-95. When the G.P.F. amount is held to be the right in the hands of the Government employees, releasing of such amount by the Government from time to time limiting/curtailing the rights of the subscribers is a deprivation of the right. It is already observed that the G.P. fund has become the right in the hands of the subscriber. If that is so, the liberty has to be given to the subscriber to draw that amount at the time of need as visualised under Rule 12 and Rule 15, subject to the availability of fund in his or her credit. Limiting of that right by releasing fund from time to time by the Government would amount to infringement of the right in the hands of the subscriber. As quoted above, Rule 12 and Rule 15 entitled the Government servants for advance and withdrawal respectively. The Rule as admitted by the respondents in their counter is applicable in the State of Nagaland in toto. There is no other Rule framed by any appropriate authority contrary to General Provident Fund (Central Services) Rules. Therefore, what is allowed by the Rules cannot be taken away by the executive order. The Rule has to be interpreted as it is.
11. Instances have been brought to my notice that Government by its order dated December 9, 1996 released Rs. 9 lakhs to the Health & Family Welfare for the drawal of G.P. fund, (Annexure-R 3 of the rejoinder). This would clearly show that the appropriate Government is not allowing the individual subscriber to draw the G.P. fund as enjoined under Rule 12 and Rule 15. At the same time, the excess withdrawal can be taken care of by the subscriber by satisfying the competent authority about the amount standing to his credit in the account with reference to the latest available statement of the account-together with the evidence of subsequent contribution on the basis of which the appropriate authority can accord sanction.
12. Not that this Court is not aware of the excess withdrawal of the fund. In fact, this Court is well aware and taking a very serious view on this. But then, it is the competent authority to take step to stop such evil practices by imposing exemplary punishment after proper inquiry when such instances have been brought to the notice of the competent authority so that its recurrence is stopped. Having not exercised such power, a blanket banning or limiting cannot be issued depriving the subscribers who are having sufficient amount to their credit in their account.
13. I am also constrained to note that at the time of hearing of this writ petition, mention has been made by the learned Junior Government Advocate that excess withdrawal is not possible without the connivance/conspiracy of the A.G. Department as well as. Treasury Department because the amount is sanctioned on the basis of deposit statements furnished by the A.G. Office. It is further mentioned by learned Junior Government Advocate that there are instances in which wrong entries are maintained so that in the account of some Government Officers are shown inflated amounts and in some of the subscribers although the subscribers are high (sic), the figure does not reflect in their account correctly because of manipulation. To say the least, the Court is taking a very serious view on this and a time may come that his Court has to summon the appropriate authority of Accountant General to this Court and once such situation arises, it may lead to unpleasant circumstances. By now, it is well settled principle of law that the public authority possess power to use for the public good not to abuse the power. A.G. Staff is definitely a public authority and it is expected that they use their power for public good.
14. Having said enough, this petition is disposed with the following directions:
(a) Second respondent is directed to lift the ban with regard to withdrawal/advance of G.P.F, within a week from the date of receipt of this order.
(b) The G.P.F. withdrawal/advance shall be allowed only after submission of statements with regard to the availability of the amount in the credit of the subscriber.
(c) Every Treasury Officer shall, before honouring of withdrawal/advance of G.P.F. insist that latest statement showing the accounts in the credit of the subscriber are made available before him.
(d) The Accountant General shall see that the latest statements are issued correctly and on the basis of actual subscription subscribed by the subscriber.
(e) Every Head of the Department shall also see that before they forward the application of G.P. Fund, withdrawal/advance the latest statement indicating the availability of money in the Credit of the subscriber is made available.
15. The Orders dated December 30, 1995, January 30, 1996 and September 29, 1994 at Annexure-A, B and C are accordingly quashed in so far with regard to the withdrawal/advance of G.P. Fund.
A copy of this order shall be sent to Accountant General, all the head of the Departments and the Treasury officer.
With the aforesaid direction, this Civil Rule is allowed. No costs.
