BASUDEO PRASAD S/O LATE DHANO SAH Vs. STATE OF BIHAR THROUGH THE SECRETARY DEPTT OF ROAD CONSTRUCTION GOVT OF BIHAR PATNA

JUDGEMENT

(1.) THE petitioner, being the father of the deceased employee of the State Government, has filed the present writ petition challenging the stand of the respondents contained in letter bearing memo no. 704 dated 9.11.2009 (Annexure-1) whereby the Respondent-Executive Engineer, Construction Division No.1, Department of Building Construction, Patna, directed the petitioner as well as respondent no.5 to obtain appropriate declaration/succession certificate from the court of competent jurisdiction enabling the respondents to pay the GPF accumulation of the deceased employee. Petitioner has also prayed for a direction on the respondents to pay the aforesaid dues in his favour on the strength of nomination made in his favour by the deceased employee. Relevant facts giving rise to the present writ petition are as under:-

(2.) LATE Binod Kumar, son of the writ petitioner, was working as Estimator (Junior Engineer) in the office of the Executive Engineer, Construction Division No.1, Building Construction Department, Patna. While working as such, he was proceeded against departmentally and was terminated from service vide order no.63 dated 18.03.2008 on the charge that while his spouse (respondent no.5) was alive, he married with another lady called Rashmi Gupta. Soon after his dismissal from service the employee died on 29.04.2009. While in service and before marrying with respondent no.5, the employee had filed a nomination in appropriate format in favour of the writ petitioner on 10.03.2008 (Annexure-3) enabling him to receive the accumulation under the said fund. There is no controversy that after having made such nomination in favour of his father (the writ petitioner), the deceased employee married with respondent no.5 and thus acquired family in terms of Rule 2(c) of the Bihar General Provident Fund Rules, 1948 (for short ,,the GPF Rules). The deceased employee even after his marriage with respondent no.5 did not amend/alter or cancel the nomination made earlier in favour of the writ petitioner. The marriage with respondent no.5 soon generated litigation(s) between the said employee and respondent no.5 inasmuch as few proceedings were filed by the deceased employee seeking decree of divorce. The deceased employee, however, failed to get the desired relief by the trial court as well as this Court. After the death of the employee, both the father (writ petitioner) as well as respondent no.5 laid claim for payment of GPF accumulation of the deceased employee in their respective favour. By the impugned order Respondent-State directed both of them to obtain appropriate declaration/succession certificate in respect of the GPF amount enabling the respondents to pay the same. During the pendency of the application, the respondents sought legal opinion whereafter by a communication dated 23.02.2010 (Annexure-5) decided to release the GPF amount in favour of respondent no.5 conditionally. The said stand of the Respondent-State was challenged by the writ petitioner by filing an interlocutory application being I. A. No. 2232 of 2010. This Court, by an order dated 15.03.2010, directed that the decision taken by the respondents to pay the GPF amount in favour of respondent no.5 (Annexures-5 and 5/A of I. A. No. 2232 of 2010) shall remain in abeyance till further orders.

(3.) MR. Verma, learned counsel for the State submits that accumulation of GPF amount of an employee is a property. Any person nominated in appropriate format is only the receiver thereof. It does not vest any right, title or interest in respect of the same. The question, therefore, is whether the father (writ petitioner) or the widow (respondent no.5) is entitled to receive the amount. A nominee is a trustee who can be paid the amount on behalf of all the beneficiaries. It does not confer exclusivity. It is not the case of the petitioner or respondent no.5 that when the nomination was made in terms of Rule 8(3) of the Rules the same was a nullity or void as the employee had already acquired a family on the date when such nomination was made. Rule 8(3), however, states that nomination made under sub rule 3 of Rule 8 shall be deemed to have been duly made in accordance with the rule only for so long the subscriber has no family. In the event the subscriber subsequently acquires a family he/she is required to nominate afresh in terms of sub rule 3 of the Rule 8 of the Rules after canceling the previous nomination made in favour of any person other than the member of the family. Giving a harmonious construction to the provision(s) of the Rule, it would manifest that as per the provisions contained in sub rule 5 of Rule 8, a fresh nomination is to be made after canceling the previous one in case the subscriber acquires a family after having made initial nomination in terms of sub rule 3 thereof. It has to be formally made in favour of one or the other member constituting family. The nomination earlier made in favour of the writ petitioner being not void ab initio, therefore, has to be declared as such by a court of competent jurisdiction since the creator thereof himself has not cancelled it even after acquiring family by marrying with respondent no.5.