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2002 DIGILAW 483 (PAT)

Hem Nandan Sharma v. Union Of India

2002-04-11

P.K.DEB

body2002
Judgment 1. All these writ petitions have been heard at the admission stage itself analogously as the points involved is the same and similar and the respondents are also same and the grievances of the petitioners are of the similar nature. 2. The petitioners were the employees of Saran Zila Khadi Gramodyog Sangh, Saran, Chapra. Originally they were the employees of Bihar Khadi Gramodyog Sangh which was working at the State level. Later on in the year 1993, for better functioning of Khadi Gramodyog Sangh a decision was taken to divide the said Khadi Gramodyog Sangh at the district level and accordingly separate units of Khadi Gramodyog Sangh at district level were started and allotted registration number districtwise and it was also decided that those who are allotted to be working in the district level should be member of the Khadi Gramodyog Sangh. In that way, the petitioners were the employee of Saran district Khadi Gramodyog Sangh, Chapra. 3. The admitted position remains that amongst the petitioners Hem Narain Sharma joined the service on 27.2.1957 and retired on 20.6.1994. Similarly, Ram Krit Singh joined on 22.4.1954 and superannuated on 30.3.1995. Ram Chandra Sharma joined on 21.2.1956 and retired on 17.2.1996 and retired on 11.10.1994. Kashi Nath Prasad joined on 10.1.1957 and retired on 31.8.1995. According to the petitioners when Khadi Gramodyog Sangh came within the purview of pensional scheme under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 within the employees family pension scheme, 1971 then they automatically came within the employees pension scheme, 1995 which came into torce in the month of November, 1995 and as per provisions of para-17 of that scheme, the petitioners were entitled to get pension on being deposited of their provident funds which have been made available to them on their superannuation, which they are very much interested to deposit, with interest as provided under the scheme itself. Regional Provident Fund Commissioner and Assistant Provident Fund Commissioner had taken the plea that nowhere it could be found that the petitioners were ever the members of the family provident fund and in that way they are not to be construed as coming within the purview of Family Pension Scheme, 1971 and when they do not come within the Family Pension Scheme, 1971 then the question of their inclusion within the family pension scheme, 1995 is out of question. 4. 4. In the counter-affidavit filed by the Khadi Gramodyog Sangh and its unit at Chapra has taken the plea that the petitioners claim cannot be entertained on the ground that after their retirement they have already been paid of their Provident Fund amounts with the contribution of the employers and their case has become final and, as such, no scope remains of their entering into the family pension scheme either of 1971 or of 1995. 1971 scheme has been repealed by 1995 and before 1995 scheme has come into force, the petitioners had already retired and as per the scheme of 1995, those who were the members of the provident fund during the scheme of 1971 and remained in service, they become automatically members of the 1995 Family Pension Scheme and in that way, those who are in service had also been listed and being sent to the Provident Fund Commissioner, the list of which has been annexed as Annexure-A to the counter-affidavit of Regional Provident Fund Commissioner. It has also been stated by the ex-employer of the petitioner that the claim of the petitioners are hopelessly barred as they have acquiesced their right in not coming within the purview of the scheme of 1995 as they are coming to this Court only in the year 2002 that too without complying the mandatory provisions as contemplated in Para 17 of the scheme of 1995. 5. On hearing the learned counsel for the parties at length and on going through the various provisions of both the schemes of 1971 and 1995 and that of the annexure-5 filed in the case, I find that the petitioners have got their legitimate grievances but that grievances has not been put in its proper forum. As per the schemes of 1971 and 1995 those who were members of the family provident fund became automatically members of the scheme and the provident fund amount with the contribution of the employers, if the same would have been forwarded to the Regional Provident Fund Commissioner then their case is to be processed mentioning as per Family Pension Scheme, 1995 being repealed of 1971 scheme. The plea of the Regional Provident Fund Commissioner that the petitioners were not the members of the family provident fund becomes redundant on the face of it when it has been admitted by the employers of Khadi Gramodyog Sangh that the petitioners have been repaid of their provident fund amount on their superannuation. So the petitioners were definitely members of the Provident Fund Scheme. Reliance has been put by the Regional Provident Fund Commissioner at Annexure-A, the list sent by the employer Sangh to the Commissioner but that list has been prepared in the year 1996 and naturally the names of the petitioners have not been included in that list as by that time they had already retired on superannuation and had been paid of their provident fund amounts. The grievance of the petitioners is that the employer before submitting the list before the Commissioner ought to have asked for option from the retired employees like that of the petitioners as contemplated under para-17 of the Employees Pension Scheme which runs as follows : "Para-17(2)Members referred to in sub paragraph 2 of para 7 shall have the option to join the scheme by returning the amount of withdrawal benefit received, if any, together with interest @ 8.5% p.a. from the date of payment of such withdrawal benefit and the date of exercise of the option to receive monthly pension as per provisions of the scheme." From reading of the said paragraph it becomes very much clear that the option is to be exercised by the employee who comes within the purview of para-7(2). Definitely, the petitioner comes within the purview of para-17(2) of the scheme itself. There is no duty cast upon the employee inviting the option from the retired employees. Option is to be exercised by the employees themselves. Nowhere it appears that up-till-now the petitioners had given any option as required under para-17(2) but it appears that some of the employees had made applications to the employer that they want to exercise the option but they have not given any deposit up-till-now. In that way, definitely, the writ petitions are prematured. Nowhere it appears that up-till-now the petitioners had given any option as required under para-17(2) but it appears that some of the employees had made applications to the employer that they want to exercise the option but they have not given any deposit up-till-now. In that way, definitely, the writ petitions are prematured. 6 The second point comes in that the petitioners had retired except one before 1995 and all have retired before coming into force of the Employees Pension Scheme, 1995 and although the scheme had come into force in the month of November, 1995, the petitioners had not exercised their option till date although long seven years have passed. The question of limitation may not apply in the present circumstances as neither the Act i.e. the Employees Provident Fund and Miscellaneous Provisions Act, 1952 or the Pension Scheme of 1971 and 1995 prescribes any limitation but then the question of acquiescence and estoppel may come in. According to the petitioners, they have got a wrong impression that when they have made an application when they came to know that their names did not appear in the list submitted by their employer before the Provident Fund Commissioner then they ought to have been included after asking for an option from them. But the provisions of the scheme as I have already stated does not cast any duty upon the employer to ask for any option. The option remains open as soon as the scheme has been implemented but the petitioners had not opted for the same. But when no provision of limitations have been there in the Act of the Scheme and from the intention of the petitioners it could be understood that they were very much interested to be included in the scheme itself and when the scheme itself is a beneficial scheme for the employees then by considering the judgments of the Apex Court as reported in 1988 (SC) 535 (K. Prasad & Ors. V/s. The Union of India and Ors.) and A.I.R. 1990 SC 2059 (Lt. Governor of Delhi and Ors. V/s. Const. Dharampal and Ors.) I am of the opinion that if proper exercise is being made for the option of the benefit as per para 17(2) of the 1995 Scheme, the petitioners claim can be entertained considering the beneficial scheme of the petitioners. 7. Governor of Delhi and Ors. V/s. Const. Dharampal and Ors.) I am of the opinion that if proper exercise is being made for the option of the benefit as per para 17(2) of the 1995 Scheme, the petitioners claim can be entertained considering the beneficial scheme of the petitioners. 7. In that way, all these writ petitions are disposed of with the observation that if the writ petitioners give their options within a period of three weeks before the authority by making deposition as required under the Scheme itself then their cases may be referred to the Provident Fund Commissioner and the Sangh authorities and the Provident Fund Commissioner are hereby directed to consider the cases of the petitioners sympathetically considering the beneficial scheme itself and the inclusion process should be included within a month from the date of proper option being exercised by the petitioners individually as mentioned above.