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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: JYOTI CHIT FUND & FINANCE & ORS.

DATE OF JUDGMENT22/03/1976

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. CHANDRACHUD, Y.V.

CITATION:  1976 AIR 1163            1976 SCR  (3) 763  1976 SCC  (3) 607  CITATOR INFO :  R          1987 SC 808  (9,11)

ACT:      Provident Funds  Act, 1925,  Ss. 3 and 4-Provident fund and  allied   amounts  fall   due,  whether  exclusion  from attachability continues-Objection  to attachment  taken  pro bono publico  by Union  of India,  if valid-’Locus  standi’, scope of.

HEADNOTE:      The appellant Union of India objected to the attachment of certain  provident fund  and pension  dues held by it (on behalf of  the Rajya  Sabha Secretariat)  in trust  for  the fourth  respondent,   an  ex-employee  of  the  Rajya  Sabha Secretariat. The  attachment was sought in satisfaction of a money-decree held  by the  first respondent.  The High Court dismissed the  appellant’s Civil Revision petition upholding the decision of the executing court.      In appeal  by special  leave, the  appellant  contended before this  Court that  although a third party to the suit, the state  had acted  pro bono  publico, by objecting to the illegality of  the proposed  attachment, and  that it  was a question of principle, affecting a wide circle of government servants. The  respondent contended  that the amounts having already fallen due, had lost the character of provident fund or pension under Ss. 3 and 4, and had become attachable, and also that  the government  had no  locus standi to object to the attachment.      Allowing the appeal, the Court ^      HELD: (1)  So long  as the  amounts are  Provident Fund dues then,  till they  are actually  paid to  the government servant who  is entitled  to it  on retirement or otherwise, the nature  of the  dues is not altered. The government is a trustee for  those sums  and has  an interest in maintaining the objection in court, to attachment. [767D-E]      Union of  India v. Radha Kissen Agarwalla & Anr. [1969] 3 S.C.R. 28, followed.      (2) Cases where public policy is involved and the court has a  certain duty  to observe  statutory  prohibitions,  a wider concept  of locus  standi has  to be taken. Any public authority interested  in the  matter, and not behaving as an

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officious busy-body may bring to the notice of the court the illegality of  the steps  it  proposes  to  take.  When  the court’s jurisdiction  is so  invoked, it  may  be  exercised without insisting  on some  other  directly  affected  party appearing to defend himself. [767F-G]      (3) The  argument that  the Rajya  Sabha Secretariat is different from the Union of India, has the merit of novelty, little else. [767 G & 768H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2179 of 1970.      Appeal by  Special Leave  from the  Judgment and  Order dated the  1st May,  1970 of  the Delhi  High Court in Civil Revision No. 26 of 1970.      G. L.  Sanghi, Girish  Chandra and  S. P. Nayar for the Appellants.      K. B. Rohtagi, M. K. Garg, V. K. Jain and M. K. Rastogi for Respondent No. 1.      The Judgment of the Court was delivered by 764      KRISHNA IYER, J.-The moral of this case is that a short cut may  often be  a wrong cut-in law, as in life. The ratio of this  appeal is  that technicality  will not  triumph  in courts of  law and  justice, where substantial public policy is  involved   and  it   is   such   public   policy   which humanistically protects  provident fund  and pensionary dues of government  servants from claims of judgment-creditors to attach in satisfaction of decrees.      The appellant,  the Union  of India,  has  come  up  in appeal, by  special leave,  challenging a  laconic order  of dismissal in  Civil Revision  made by  the Delhi High Court, thus upholding  the view  of the executing court over-ruling the contention  of the State, objecting to the attachment of certain provident  fund and  pension dues  held by  Union of India (on  behalf of  the Rajya  Sabha Secretariat) in trust for the  judgment-debtor who  had been employed in the Rajya Sabha Secretariat.  The first  court had held that the Union of India  had no locus standi to object to the attachment by the decree-holder  on the score that an outsider to the suit without ’interest  in the  attached money’  has standing  to intervene to  dispute the  attachability even if the sum was clearly immune  to attachment in law. The relevant reasoning is in these terms:           "It is  not the  case of  the Union  of India that      Union  of  India  has  any  interest  in  the  attached      property so  as to  entitle Union  of India  to make an      application under  Order 21,  r. 58 CPC. In my opinion,      if the  attachment has  been wrongly made it is for the      judgment-debtor to make an application to the court for      releasing the provident fund or the compulsory deposits      from attachment." The Court  also expressed  the view that it was premature to hold:           "that  attached   money  will   fall  within   the      definition of provident fund or compulsory deposit."      In fairness to the Subordinate Judge it must be said he did  feel   ’inclined  to  agree  that  provident  fund  and compulsory deposits  are not  liable to any attachment under any decree or order of the civil court.      The ground  which weighed  with the trial court and has won the  approval of  the High Court is that "the Government has no  interest in  the attached  money  and  therefore  no

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standing to  come to  court. The  judgment-debtor  may  file objections  for   release  of   the  attached   money.   The objections, if  made, will  be decided afresh on merits." It is apparent  from this  statement of  facts that  the courts below took  the narrow  view, with an escapist flavour which led to  long litigation  and large  expense, that  only  the judgment-debtor  and   not  the   Government   could   raise objections regarding non-attachability of provident fund and pension  amounts,   as  if   Government  were  an  officious intruder, bereft  of any  concern in  the insultion  of  the amounts against execution of decrees of court.      The amount  involved is small, but Shri Sanghi, for the appellant, contends  that the  question is  one of principle and affects  a wide  circle of government servants. We agree and indeed appreciate the State’s 765 anxiety to fulfil the policy of the statute on behalf of the weaker-sections by  taking up  the burden on itself. May be, it is  like a test case ventilating a cause in which a large number of employees may be vitally involved.      We may  make it clear here that the stand taken by Shri Rohatgi, counsel  for the respondent, is two-fold. He argues firstly that  this amount  in the  hands  of  Government  is admittedly  being   held  on   behalf  of  the  Rajya  Sabha Secretariat servant who has just retired and, therefore, has lost  the  character  of  provident  fund  or  pension.  The inhibition of attachment of provident fund and like amounts, even if valid, cannot apply to this class of sums which have suffered a  metamorphesis. Secondly,  the Government  has no right to  move the court raising objection to the attachment since the judgment-debtor is the only appropriate person who can do so. We disagree.      Processual law  is neither  petrified nor  purblind but has simple  mission-the  promotion  of  justice.  The  court cannot content  itself with  playing umpire  in a  technical game of  legal skills  but must  be activist in the cause of deciding the  real  issues  between  the  parties.  And  one guiding principle  is not  to  exaggerate  the  efficacy  of procedural  defects  where  issues  of  public  concern  are involved and  a public  authority vitally  interested in the correct principle  alerts the  attention of the court to the problem. A  broadened view  of locus  standi  loads  to  the futility of technical flaws where larger issues are involved and that  is the  trend of  modern processual jurisprudence. These general  considerations  were  trite,  yet  too  often ignored, and  so need reiteration. Further, the consumers of justice can have scant respect for a procedural policy which is obsessed  more with  who sparks  the plugs  of the  court system than  with what the merits of the rights or wrongs of the relief are. A shift on the emphasis, away from technical legalistics, is  overdue if the Judicature is not to aid its grave diggers. We express the view strongly so that hopefuls may be  dissuaded from  taking up  court time  by playing up technicalities.      We may  now move  on to  a consideration  of the  basic contentions and, before that, the basic facts may be briefly set down. On March 31, 1967 a money decree for a little over Rs. 2,000/-  was passed in Suit No. 516 of 1966 in favour of respondent No.  1 and against respondents 2 to 4 (who are ex parte). A warrant or attachment of the ’funds’ of respondent No. 4,  in the  hands of  the Rajya  Sabha Secretariat,  was sought and ordered. It reads:      "To           The Pay & Accounts Officer,           Rajya Sabha Secretariat,

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         New Delhi.      Whereas judgment-debtor No. 3, Shri S. Krishnaswamy, an      ex-reporter has  failed  to  satisfy  a  decree  passed      against him  on the 31st day of March, 1967 in suit No.      516/66 in  favour of M/s Jyoti Chit Fund and Finance P.      Ltd., for Rs. 2193-50. It is ordered that the defendant      judgment-debtor is  hereby  prohibited  and  restrained      until the further 766      order of  this Court  from receiving  from the  Pay and      Accounts Officer  the following  property in possession      of the said Pay and Accounts Officer that is to say Rs.      2193-50  to  which  the  defendant  judgment-debtor  is      entitled, subject  to any  claim of  the said J. D. and      the said  Pay and Accounts Officer is hereby prohibited      and restrained,  until the  further order of this court      from delivering of the said property to any person.           Given under  my hand and seal of the Court on 12th day of September 1968.                                                         Sd/-                                 Sub-Judge 1st Class, Delhi."      On service  of  the  attachment  order,  objection  was raised by the appellant, Union of India, on January 30, 1969 on the  score that  provident fund  amounts  and  pensionary benefits were  not liable  to attachment  and therefore  the order may  be rescinded.  The decree  holder (respondent  1) successfully  contested  in  the  trial  court  and  on  the objection being  over-ruled, the  appellant moved  the  High Court. It may be stated, at this stage, that the trial Court did not  actually investigate  the claim of the appellant as to whether  the whole,  or part  of the  amount sought to be attached, represented  provident fund or pensionary benefits nor did the High Court go into the question. This means that even if  we uphold the contention of the appellant, the case will have to go back for investigation on the merits      We may  formulate what  has been  indicated-the  actual points  urged  before  us  by  Shri  Sanghi  and  vigorously controverted by  Shri Rohtagi.  (1) Is it permissible in law for amounts  representing provident  fund contributions  and pensionary benefits to be attached, having due regard to ss. 3 and  4 of  the Provident  Funds Act, s. 11 of the Pensions Act and s. 60(1), provisos (g) and (k) of C.P.C.? (2) Is the Union of  India entitled to move the Court and request it to investigate the  question that  the whole or part of the sum in its  hands on account of the judgment-debtor as provident fund,  compulsory  deposits  and  pensionary  benefits  and, therefore, not liable to be attached, or is it out of bounds for a third party to the suit, like the Union of India, even if the  step be  taken pro bono publico by a relevant public authority, to  invoke the  jurisdiction of the Court in this behalf? (3)  Is the Rajya Sabha Secretariat staff so totally separated from  the Union  of India  that the  latter cannot urge,  in   these  proceedings,   the  claims  belonging  to employees of the said Secretariat in the civil court even if the attachment  of the sums involved is contrary to law ? We are inclined  to hold,,  without hesitation  that on all the points the  appellant is bound to succeed. A bare reading of ss. 3  and 4  of the Provident Funds Act, 1925, read with s. 2(a) of  that Act,  will convince  anyone that attachment of amounts bearing their description are prohibited. It will be a  gross   violation  of  legal  mandates  involving  public interest if,  in the teeth of such injunction, an attachment should still be ordered by a court.      The finer distinction sought to be made by Shri Rohatgi that because  the appellant  has already retired, therefore,

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the provident fund 767 and allied  amounts have  already fallen due and have ceased to possess  the complexion of sums ’by way of provident fund under ss.  3 and  4’, is fallacious. On first principles and on precedent,  we are clear in our minds that these sums, if they are  of the character set up by the Union of India, are beyond the  reach of  the court’s power to attach. Section 2 (a) of  the Provident  Funds Act has also to be read in this connection  to   remove   possible   doubts   because   this definitional clause is of wide amplitude. Moreover, s-60(1), provides (g)  and (k),  leave no  doubt on the point of non- attachability. The  matter is  so plain  that discussion  is uncalled for.      We  may   state  without  fear  of  contradiction  that provident  fund   amounts,  pensions  and  other  compulsory deposits covered  by the  provisions we  have  referred  to, retain their  character until  they reach  the hands  of the employee. The  reality  of  the  protection  is  reduced  to illusory formality  if we  accept the interpretation sought. We take  a contrary  view which  means  that  attachment  is possible and  lawful only after such amounts are received by the employee.  If doubts may possible be entertained on this question, the  decision in  Union of  India v.  Radha Kissen Agarwala & Anr. erases them. Indeed our case is an afortiori one, on  the facts. A bare reading of Radha Kissen makes the proposition fool-proof  that so  long  as  the  amounts  are Provident Fund dues them, till they are actually paid to the government servant  who is  entitled to  it on retirement or otherwise the  nature of  the dues  is not  altered. What is more, that  case is  also authority  for the  benignant view that the  government is  a trustee for those sums and has an interest  in   maintaining  the   objection  in   court   to attachment.  We   follow  that   ruling  and  over-rule  the contention.      It is  possible to  take a  broad view that cases where public policy  is involved  and the court has a certain duty to observe  statutory prohibitions, a wider concept of locus standi has  to be  taken. Any public authority interested in the matter  and not behaving partially as an officious busy- body may  bring to the notice of the court the illegality of the steps it proposes to take. When the court’s jurisdiction is so invoked, it may be exercised without insisting on some other directly  affected party,  like the judgment-debtor in the instant case, appearing to defend himself.      The  argument  that  the  Rajya  Sabha  Secretariat  is different from  the Union of India is a new gloss which Shri Rohatgi has  put upon his contention of locus standi. He has pressed  into   service  Articles   300  and  98(2)  of  the Constitution of India, neither of which is helpful or 768 applicable. This  point has  the merit  of  novelty,  little else. Consequentially, we set aside the decision of the High Court and of the executing court, but this is not the end of the matter.      We direct the court of the Subordinate Judge to go into the merits  of the objection raised by the Union of India as to whether  the entire amount or any portion thereof held by it on behalf of the Rajya Sabha Secretariat staff, so far as the judgment-debtor  in this  case is  concerned, represents provident  fund   and  compulsory   deposits  or  pensionary benefits, excluded  from attachability in execution of civil decrees under  the provisions  already adverted to. If it is feasible to effect service of notice on the judgment-debtor, well and  good, but  if it  is not, the court cannot absolve

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itself of  the duty  to investigate  into the  merits of the claim or  character of  the amounts, so long as the Union of India is ready to make good its contention.      The appeal is allowed with costs in this Court. M.R.                                         Appeal allowed. 769