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2000 DIGILAW 712 (KAR)

CHOTIBI v. REGIONAL PROVIDENT FUND COMMISSIONER

2000-11-02

M.P.CHINNAPPA

body2000
M. P. CHINNAPPA, J. ( 1 ) HEARD Sr. Prabhulinga K. Navadgi learned counsel for the petitioner, Sr. Harikrishna Holla, learned counsel for R-1 and Smt. H. R. Renuka for R-2. ( 2 ) THE learned counsel for the petitioner has vehemently argued that the 1st respondent has committed an error in not making an order fixing the family pension of the petitioner and also to release the family pension from the date of death of her husband till payment which has accrued to her account. ( 3 ) THE learned counsel for the 1st respondent submitted that the petitioner is not entitled for an employees pension in view of the fact that the husband of the petitioner had not contributed to provident Fund for a minimum period of 2 years and therefore, she was paid the amount which was contributed by the respondent during his life time. Therefore, he submitted that the petition is liable to be dismissed. ( 4 ) BY way of reply, the learned counsel for the petitioner submitted that when the matter was pending before the authority for consideration, the employees pension scheme, 1995, came into operation w. e. f. November 16, 1995 and para 44 which repealed the Family Pension Scheme, 1971, (for short 'the scheme') and therefore, notwithstanding the fact that the husband of the petitioner had not contributed for 2 full years, the petitioner is entitled for the family pension. In view of this contention, it is now necessary to refer to the brief facts of the case which are as follows: Sr. Abdul Rashid Ahmed Khazi the husband of the petitioner was appointed by the 2nd respondent and he died in harness on January 20, 1972 leaving behind him, his wife, as the sole surviving legal heir. It is not in dispute that the husband was enrolled in the Scheme and he contributed to the said scheme from June 1, 1971 to November 21, 1972. e. till his death. After the death of her husband, the petitioner made several unsuccessful representations. On October 3, 1991 the 2nd respondent vide his letter dated October 3, 1991 in No. 3219/91 sent a proposal to the respondent No. 1 for release of family pension. Despite that, the 1 st respondent did not take any steps which resulted in filing W. P. 26118/96 by the petitioner. On October 3, 1991 the 2nd respondent vide his letter dated October 3, 1991 in No. 3219/91 sent a proposal to the respondent No. 1 for release of family pension. Despite that, the 1 st respondent did not take any steps which resulted in filing W. P. 26118/96 by the petitioner. By Order dated June 30, 1997 the 1st respondent was directed to pass an appropriate order in accordance with law. Even thereafter, the petitioner got issued a legal. notice dated September 9, 1991, as the order of this court was not implemented. Hence, contempt proceedings were initiated in CCC. 910/1998. The respondent No. 1 appeared in the contempt proceedings before this Court and submitted that the petitioner was entitled only to a sum of Rupees 175/- as her husband did not contribute for the minimum period of 2 years and that amount was settled in the month of January 1992. Therefore, the petitioner filed this petition questioning the correctness and legality of the order passed by the respaondent. ( 5 ) THOUGH the Court directed the first respondent to produce proof for having paid the amount of rs. 175/- in full and final settlement of the family pension in the month of January 1992 itself, the first respondent could not produce any documentary proof to establish that the petitioner did receive the amount. On the other hand it is made out that the amount was sent to the petitioner. Further the petitioner specifically denied having the amount been received by him. Under that circumstance, it is deemed that the claim has been pending consideration before tbe first respondent as there is no proof that the amount was received by the petitioner. It is obviously clear that the petitioner was constrained to approach this Court with a writ petition in W. P. No. 26118/1996. which was disposed of on June 30, 1997 with a direction to the respondents to consider the request of the petitioner. If the amount was paid in the month of January, 1992 itself, the respondents could have established by producing necessary materials and thereby it is clear that this fact was not brought to the notice of this Court when the writ petition came to be disposed of. Therefore, the Court has directed the respondent to consider the request of the petitioner. Therefore, the Court has directed the respondent to consider the request of the petitioner. Subsequently when the Contempt Proceedings were initiated the first respondent has taken a plea of having paid Rs. 175/- to the petitioner. Hence the learned counsel for the petitioner is right in his submission that since the amount has not been settled the petitioner had to approach this Court with this writ petition. ( 6 ) THUS it is clear that the claim of the petitioner has been pending with the respondent and the question is whether the subsequent scheme which came into force in the year 1995 is applicable or not. ( 7 ) ACCORDING to Para 44 of the Employees' Pension Scheme, 1995, which reads thus: "repeal AND SAVINGS. (1) On commencement of this Scheme, the Employees' Family Pension Scheme, 1971, in force immediately before such commencement shall cease to operate with effect from November 16, 1995. (2) Notwithstanding anything contained in Sub-paragraph (1) every nomination made under the employees' Family Pension Scheme, 1971, and every form regarding the details of Family of an employee for the purposes of the Employees' Family Pension Scheme, 1971, shall be deemed to have been made under the provisions of this Scheme. " ( 8 ) ACCORDING to para 16 of this Scheme, which reads: "benefits to the family on the death of a member. (1) Pension to the family shall be admissible from the date following the date of death of the member if the member dies: (a) while in service, provided that at least one month's contribution has been paid into the employees' Pension Fund, or (b) after the date of exit but before attaining the age of 58, from the employment having rendered service entitling him/her to monthly member's pension but before the commencement of pension payment or; (c) after commencement of payment of the monthly members pension. NOTE: The cases where a member has rendered less than 10 years eligible service on the date of exit but has retained the membership of the Pension Fund, and dies before attaining the age of 58 years, shall be regulated under Sub-paragraph (8) of paragraph 12. NOTE: The cases where a member has rendered less than 10 years eligible service on the date of exit but has retained the membership of the Pension Fund, and dies before attaining the age of 58 years, shall be regulated under Sub-paragraph (8) of paragraph 12. " ( 9 ) AS stated above the first respondent contended that the petitioner is not entitled for family pension only on the ground that as required under the Family Pension Scheme, 1971, her husband has not contributed for the family pension for two continuous years and that pension scheme has been repealed when the claim of this petitioner is pending. Therefore, I am of the considered view that the petitioner is entitled to make use of the provisions of he Family Pension scheme, 1995, which admittedly came into force in the year 1995. At the cost of repetition it has to be said that when this pension scheme came into force the claim of the petitioner was pending before the respondent and the petitioner has been agitating the matter before this Court. Therefore the scheme is applicable to her. When the scheme is applicable to the petitioner, notwithstanding the fact that her husband not contributed for two continuous years under the scheme, yet she is entitled for the benefit under the present scheme. ( 10 ) WITH this background it is now necessary to consider the decision rendered by their lordships of the Supreme Court in Gajraj Singh v. State Transport Appellate Tribunal reported in, 1996 VII AD (SC )490 , AIR1997 SC 412 , JT1996 (8 )SC 356 , 1996 (7 )SCALE31 , (1997 )1 SCC650 , [1996 ]supp6 SCR172 , wherein it is held thus at Page 421 of air: "when there is a repeal and simultaneous re-enactment, Section 6 of the General Clauses Act would apply to such a case unless contrary intention can be gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. The object of repeal and re-enactment is to obliterate the repealed Act and to get rid of certain obsolete matters. " ( 11 ) IN this case the object of the Act and the scheme is to extend the benefit to the employees who are the weaker section of the society providing the family pension to those who died during service having contributed even one month towards Family Provident Fund Scheme. Therefore, if the object with which this scheme has been introduced, I am of the view that the benefit should be extended to the family of the poor workers and that intention is clear that the benefit should be given to the unfortunate family of the employees. ( 12 ) IN 1995 Lab IC 965 (SM. Gandem Mohanagi v. Commissioner, Regional Provident Fund, west Bengal and Andaman and Nicober Islands), the Calcutta High Court has held that: "to lay her claim arose for the Family Pension Fund the existing law as prevailing at that time made one years of wage earning service as reckonable service. That criterian having not been fulfilled in the instant case the petitioner cannot have any claim in respect of the said fund. " In this case benevolent provision of 1995 was not considered as by then the amount was settled. ( 13 ) THE Division Bench of this Court in the case of Regional Provident Fund Commissioner v. Smt. Famida Begum W. A. No. 534/98, dated March 17, 1998, held thus: "we agree with the findings recorded by the learned single Judge that after the omission of the proviso to Para 2 (f) the respondent would be entitled to family pension on account of death of her husband. The proviso to Para 2 (f) was omitted with effect from April 1, 1988. The husband of the respondent died on June 26, 1988. As the cause of action arose after the omission of the proviso to Para 2 (f) w. e. f. April 1, 1988, the respondent would be entitled to the benefit of the family pension. The proviso to Para 2 (f) was omitted with effect from April 1, 1988. The husband of the respondent died on June 26, 1988. As the cause of action arose after the omission of the proviso to Para 2 (f) w. e. f. April 1, 1988, the respondent would be entitled to the benefit of the family pension. No ground is made out to interfere with the order of the learned single Judge. " ( 14 ) IN this case also if the amount was settled before the scheme of 1995 came into force the petitioner would not have been entitled for the benefit. In addition to that the husband of the petitioner was contributing his fund regularly from June 1, 1971 till November 21, 1972, till he died in harness. It is not a case that her husband deliberately failed to contribute the amount, but it was only due to unforeseen circumstances. Subsequently the scheme was amended with a novel idea to extend the benefit to those employees who have contributed even for a month and that intention of the Legislature will have to be taken into consideration while extending the benefit of the provision to the poor and unfortunate widow. ( 15 ) FOR the foregoing reasons, this petition is allowed. Directing the respondents to calculate and settle the family pension payable to the petitioner. It is further directed that since the matter has been pending from a very long time the respondents shall make the payment within two months from the date of receipt of the copy of this order.