Gujarat High Court Case Information System
Print
SCA/9272/2010 4/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9272 of 2010
=========================================================
DILIPBHAI
KAMALKANT KARNIK - Petitioner(s)
Versus
SUPERINTENDENT
& 1 - Respondent(s)
=========================================================
Appearance
:
MR
SUDHANSHU S PATEL for
Petitioner(s) : 1,
MR RAJU K KOTHARI for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/10/2010
ORAL
ORDER
Heard
learned advocate Mr. SS Patel on behalf of petitioner, learned
advocate Mr. RK Kothari appearing for respondent no. 1 and 2. The
Affidavit in reply is filed by respondent no. 2, page 47 to 68.
Thereafter, affidavit in rejoinder is also filed by petitioner at
page 69 to 74.
I
have considered submission made by both learned advocates and
perused contention raised by present petition as well as averment
made in reply and rejoinder, which are produced on record by
respective parties. The question raised and involved in present
petition require detailed examination by this Court. Hence, Rule.
In
this case petitioner was working with Indian Oil Corporation Limited
as Dy. Manager when petitioner opted for Voluntary retirement after
completion of 24 years of his service because of he is having
serious health problem (Heart) dated 16/2/2002. The petitioner
received an amount of Rs. 12,65,000/- towards payment of his
accumulated Provident Fund from his employer vide cheque no. 8683
dated 29/7/2004. One Mr. T. A. Shah authorized agent of Postal
Department having agency code no. 4420/2001 alongwith one Mr.
Rakeshbhai has visited at petitioner’s resident and had advised to
deposit amount in Senior Citizen Saving Scheme of 2004 as petitioner
was entitled to invest under said scheme which was specially for
Senior Citizen and person who have attended age of 55 years or more
and who have retired under Voluntary Retirement Scheme which was
fetching interest at the rate of 9% interest per annum. The
interest is to be paid quarterly. The petitioner being a Heart
patient, had deposited entire amount of Rs. 12,65,000/- with Postal
Department, District Post Office, respondent no. 2 which was nearest
to his resident on 4-7/5/2005. This deposit was accepted by
respondent no. 2 under Senior Citizen Saving Scheme 2004 and had
open account in name of petitioner vide A/c no. 1450154 on same day
and passbook was issued to petitioner. The passbook was containing
entire details i.e. amount of deposit, date of opening of account
and date of maturity. The name of nominees, PNR number, amount of
interest to be paid quarterly along with particular of retirement
order. On 30/6/2005, petitioner had received amount of Rs. 18,091/-
towards interest upto said date and then after every quarterly Rs.
28,463/- was received upto 31/3/2010. The maturity date was
4/5/2010 after completion of six years. But on 5/5/2010, petitioner
was not paid principle amount deposited Rs. 12,65,000/- but
petitioner had received communication from office of respondent no.
1 being Disc-SCSS-004-10-11-A dated 12/7/2010 stating that there is
a irregularities in opening Senior Citizen Savings Scheme Account on
5/5/2010. The reason which has been given by respondent for said
account ought to have been opened on or before 26/11/2004 as date of
retirement of petitioner was 29/7/2004. Therefore, interest amount
Rs. 5,30,475/- which has been received by petitioner is required to
be recovered from petitioner by respondent. Therefore, present
petition is preferred by petitioner challenging aforesaid order
dated 12/7/2010.
Against
that Affidavit in reply is filed by respondent raising same
contention that account is opened by such individuals within a
period of one month from date of receipt of retirement benefits and
proof of date of disbursal of such retirement benefits. Therefore,
petitioner has not fulfilled other specific condition as per above
Rules. As per scheme, petitioner ought to have opened account on or
before 26/11/2004 because petitioner was retired from service on
29/7/2004, which was mandatory being crucial date for opening
account i.e. on 26/11/2004. According to respondent, it is a duty
of authorized agent to know all relevant rules of each and every
scheme, for which, they are authorized to procure the business.
In
light of this objection raised by respondent, at this stage, this
Court has considered question whether petitioner is entitled interim
relief as prayed in present petition or not? Learned advocate Mr.
SS Patel relied upon decision of this Court in case of Union of
India Vs. Avindharbhai P Shah in LPA no. 813/1999 and LPA no.
847/1999 dated 21/9/2000 where identical question has been examined
by this Court in para 3 and 4 which are quoted as under:
3. We
find that the factum that the accounts were opened through the
Power of Attorney holder had not been suppressed or concealed and
the Department knew it very well at the time when the Account was
opened that it was being opened through the Power of Attorney
holder. After the Account has remained operative for number of
years and the deposits have been accepted therein, when it
comes to the question of closure of the Account, to deny the
payment of the interest on the ground that the opening of the
Account itself was irregular and that it was contrary to the
clarifications given by the Finance Department, cannot be said to be
justified. The learned Single Judge has given reasons in
detail in para 7, 8, and 9 of the impugned order for allowing the
petitions. The learned Single Judge has also mentioned in the body
of the order that the matter was covered by two earlier decisions
of this Court, i.e. in Special Civil Application No.
6794 of 1987 decided on 2nd March 1988 and in Special Civil
Application No.3088 of 1988 decided on 24th December 1993. Even
if it is assumed that opening of the Account was contrary to the
clarifications issued by the Finance Department and that the
Account could not be opened through the Power of Attorney holder, it
may entail an action against the officials who did not adhere to the
clarifications of the Finance Department but the members of
the public who come to open the Account in a National Savings
Scheme cannot be told after number of years when they want to close
the Account that they will not be entitled to any interest and the
members of the public at large cannot be made to suffer any
prejudice on account of such violations of no significant
consequence. Even otherwise, if there is any
irregularity in the opening of the Account, it cannot entail in
the forfeiture of the interest accrued on the deposits made
therein for no fault on the part of the person who opened the
Account or on the part of the person through whom the Account
was opened, unless it is made out that any important or
material
fact was suppressed or concealed which is not the case against the
original petitioners.
4. We fully agree with the reasons given by the learned Single Judge and do not find any reason to interfere with the order passed by the learned Single Judge. There is no merit in these two Letters Patent Appeals, so far as the main claim is concerned. So far as the grant of cost of Rs.2,000/- each in each of these parties is concerned, Mr.Satyan Thakkar appearing on behalf of the original petitioners, i.e. respondents herein has stated that the respondents in each of these two Letters Patent Appeals would not claim the cost and he waives and foregoes the cost as has been awarded by the learned Single Judge. Thus the order with regard to the payment of costs to the appellants is not to be enforced against the appellants and we order accordingly.
Learned
advocate Mr. Patel also relied upon decision of this Court in
identical facts and circumstances in case of Pranit K Nanavati Vs.
Union of India in SCA no. 29735/2007 dated 23/8/2010 where para 3, 6
and 7 are quoted as under:
3. It
is the case on behalf of the petitioner that the petitioner made
various deposits from 02/04/1988 to 31/03/1992 under the National
Savings Scheme, 1987 to the tune of Rs. 90,000/- in NSS Account No.
9141 opened by the petitioner through his power of attorney. It is
the case on behalf of the petitioner that the total amount with
interest accrued on the principal amount as on 01/04/2006 was Rs.
4,14,873/-, which is illegally withheld by the respondents allegedly
on the ground that the amount deposited by the petitioner, through
his father Shri K.S. Nanavati as his power of attorney holder, was
itself contrary to the rules of National Savings Scheme and,
therefore, the interest amount accrued cannot be disbursed. Being
aggrieved and dissatisfied with the above, the petitioner has
preferred the present Special Civil Application.
6. Having
heard the leaned advocates appearing on behalf of the respective
parties and considering the controversy raised in the present
petition, it appears that the controversy raised in the present
petition is now not res integra and is squarely covered by the
decision of the Division Bench of this Court dated 21/09/2000 in
Letters Patent Appeal Nos. 813 & 847 of 1999. It is not in
dispute that as such the department accepted the amount and credited
into the NSS Account of the petitioner and nothing is on record that
there was any suppression or concealment on the part of the
petitioner in opening the NSS account through his power of attorney.
In paragraph 3, the Division Bench has observed and held as under;
3. We
find that the factum that the accounts were opened through the Power
of Attorney holder had not been suppressed or concealed and the
Department knew it very well at the time when the account was opened
that it was being opened through the Power of Attorney holder. After
the account has remained operative for number of years and the
deposits have been accepted therein, when it comes to the question of
closure of the account, to deny the payment of the interest on the
ground that the opening of the account itself was irregular and that
it was contrary to the clarifications given by the Finance
Department, cannot be said to be justified. The learned Single Judge
has given reasons in detail in paragraph 7, 8 and 9 of the impugned
order for allowing the petitions. The learned Single Judge has also
mentioned in the body of the order that the matter was was covered by
two earlier decisions of this Court, i.e. in Special Civil
Application No. 6794 of 1987 decided on 2nd March, 1988
and in Special Civil Application No.3088 of 1988 decided on 24th
December, 1993. Even if it is assumed that opening of the account
was contrary to the clarifications issued by the finance department
and that the account could not be opened through the power of
attorney holder, it may entail an action against the officials who
did not adhere to the clarifications of the finance department but
the members of the public who come to open the account in a national
savings scheme cannot be told after number of years when they want to
close the account that they will not be entitled to any interest and
the members of the public at large cannot be made to suffer any
prejudice on account of such violations of no significant
consequence. Even otherwise, if there is any irregularity in the
opening of the account, it cannot entail in the forfeiture of the
interest accrued on the deposits made therein for no fault on the
part of the person who opened the account or on the part of the
person through whom the account was opened, unless it is made out
that any important or material fact was suppressed or concealed which
is not the case against the original petitioners.
7. Considering
the decision of the Division Bench of this Court, the petition
deserves to be allowed. In view of the above and for the reasons
stated hereinabove, the petition succeeds and the concerned
respondents are directed to pay the principal amount deposited by the
petitioner lying in NSS Account No. 9141 with interest considering
the rate of interest prevailing and valid from time to time.
Necessary calculation with respect to the accrued interest shall be
made by the respondent authorities within a period of six weeks from
today and actual payment to the petitioner shall be made within a
period of four weeks thereafter. It is made clear that the
petitioner shall be entitled to the interest on the principal amount
only up to 01/05/2007. Rule is made absolute to the aforesaid
extent. No cost.
In
view of aforesaid observation made by Division Bench of this Court
as well as learned Single Judge as referred above, petitioner has
established prima facie case and petitioner is entitled interim
relief as prayed in present petition.
By
way of interim relief, order passed by respondent dated 12/7/2010
Annexure B is hereby stayed with further direction to respondent to
pay entire mature amount as per account no. 1450154 under Senior
Citizen Savings Scheme, 2004 which become mature w.e.f. 4/5/2010
within a period of one month from date of receiving copy of present
order subject to final out come of present proceeding.
Let
petitioner may file undertaking before this Court that in case of
ultimate result whatever direction may be issued by this Court same
remained binding to petitioner. This undertaking is required to be
filed by petitioner within a period of fifteen days from date of
receiving copy of present order and to supply copy of such
undertaking to learned advocate Mr. Kothari appearing for
respondent. Direct service is permitted.
(H.K.RATHOD,
J)
asma
Top