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2004 DIGILAW 621 (CAL)

KARUNA BALA BERA v. STATE OF WEST BENGAL

2004-09-15

AMITAVA LALA

body2004
AMITAVA LALA, J. ( 1 ) PETITIONER's husband joined in the service on 21st March, 1960. He passed away on 2nd February, 1986 while he was in service. On 3rd may, 1986 the petitioner received a gratuity and provident fund amount from the Manager of the company. On 7th December, 1988 the petitoner received deposit linked insurance amount from the Employees' Provident Fund commissioner. On 1st April, 1994 the petitioner filed form No. 20 and 10a (F. P. F.) under the respective scheme before the respondents for getting family pension. The petitioner made several representations in between 2000 to 2002 and lastly in 2004 and finding no other alternative invoked the writ jurisdiction of this Court on 7th May, 2004. ( 2 ) THEREFORE, the obvious questuion arises before this Court that when the petitioner received both his gratuity and provident fund amount from his employer and also received deposited amount under insurance from the Regional provident Fund Authority, in the year 1986, the year when the petitioner's husband expired, can it be called as deferred payment on the part of the authority concerned or the management in giving the appropriate monetary relief after death of the incumbent died in harness? My answer is 'no' Therefore, the only remaining question available hereunder is whether any application for granting family pension can be allowed to be entertained in the year 1994, after eight years of death of the deceased? Even assuming for the moment that such application was filed in the year 1994 but when the petitioner became silent thereafter whether the writ petition can be allowed on that score after a period of ten years from such time? ( 3 ) PARAGRAPH 6a read with paragraph 12 under the Employees' Pension scheme, 1995 is germane for the purpose of due consideration. Paragraph 6a says that a membership of Employees' Provident Fund shall continue to such member till he is attaining the age of 58 years or he avails of the withdrawal benefit to which he is entitled under paragraph 14 of the scheme, or dies or the pension is vested to him in terms of paragraph 12 of the scheme whichever is earlier. In the instant case, the incumbent expired. Therefore, his membership under the Employees' Pension Fund ceases to take effect on his death on 2nd february, 1986. In the instant case, the incumbent expired. Therefore, his membership under the Employees' Pension Fund ceases to take effect on his death on 2nd february, 1986. Paragraph 12 (l) (c) says that one is entitled to short service pension, if he renders eligible service of ten years or more but less than twenty years. But as per paragraph 12a option for commutation has to be made under paragraph 12 on completion of three years from the commencement of the scheme, to commute up to a maximum of one-third of his pension so as to receive hundred times the monthly pension so commuted as commuted value of pension. Balance pension will be paid on monthly basis as per option exercised under paragraph 13. This option of commutation was inserted in the Employees' pension Scheme, 1995 by the Government Order on 28th February, 1996 for giving effect from 16th March, 1996. The incumbent expired prior to the introduction of the option. According to the Learned Counsel, appearing for the respondent, petitioner's husband could have opted for joining under Employees' family Pension Scheme, 1971 within the period of six months from 1st March, 1971 as per paragraph 4 therein. However, I find from the notification, as referred thereunder, that the period of six months was notified on 1st June, 1971. Therefore, virtually three months' period was left for the purpose of giving the aforesaid option. Hence, one aspect should be considered hereunder whether fixation of the period for opting for family pension is directory or mandatory. As find that the notification was issued after expiry of three months out of six months in the scheme, 1971 and further option was introduced in 1996 under the scheme, 1995,i cannot hold that the time period for giving option under the scheme, 1971 is mandatory. If one loses the opportunity of giving option just after expiry of the period he cannot be disallowed by saying that in spite of having six months period because of late he has failed to give the option because of late notification. Secondly, when further option under the scheme, 1995 was given it can be safely construed that the legislative intent is to give more benefit of the beneficiaries under the beneficial piece of legislation. Till this day percentage of law knowing and concerned workmen and their family members are very limited in our country. Secondly, when further option under the scheme, 1995 was given it can be safely construed that the legislative intent is to give more benefit of the beneficiaries under the beneficial piece of legislation. Till this day percentage of law knowing and concerned workmen and their family members are very limited in our country. Therefore, when the scheme of 1995 was introduced for giving further option, delay in making an option under the previous scheme of 1971 should be condoned and be regularised. ( 4 ) IN the instant case, certain records are produced by the respondent for the purpose of ascertaining of the actual position. I find from the correspondences made by the Provident Fund Authorities as also the company being dated 10th january, 2001, 29th December, 2001, 8th April, 2002, 5th September, 2002 and 29th April, 2003 respectively that the ground of refusal is that as because the petitioner's husband did not opt for family pension under scheme, 1971, therefore, the petitioner being the widow cannot be entitled to any family pension. I find from those records that the company had supported the stand of provident Fund Authorities and also stated that although the widow immediately submitted a claim form for family pension benefit. The same was done without any endorsement of the employer. However, ultimately, the company also took the similar stand that as because he was not a member of the family pension scheme, 1971 the claim cannot be allowed to be considered. Factually, the respective forms were independently submitted by the petitioner, i. e. the widow of the deceased, in 1994 when the scheme of 1995 was neither introduced nor the period for giving option for commutation in the scheme 1971 was expired. The new scheme is made for the eligible members and existing members under the scheme, 1971. Both the schemes are children of the employees' Provident Fund and Miscellaneous Provisions Act, 1952, a broader beneficial piece of legislation. Pension under the scheme, 1995 is made towards family pension under such scheme and also under scheme, 1971. However, the pertinent question is whether family members of a non-member can be treated as member to have any right to apply for the family pension or not. Pension under the scheme, 1995 is made towards family pension under such scheme and also under scheme, 1971. However, the pertinent question is whether family members of a non-member can be treated as member to have any right to apply for the family pension or not. Bare denial of such right cannot be the solid foundation of defence of the authority and management in view of 2003 (1) SCC 184 (S. K. Mastan Bee vs. General Manager, south Central Railway and Anr. ). There the Supreme Court allowed application of the widow of a deceased for a family pension after 22 years. There the question of delay was ignored on various grounds. Firstly the very denial of her right to family pension amounted to a violation of the guarantee assured under Article 21 of the Constitution of India. Secondly, the deceased might not have left behind sufficient resources to agitate her rights. The petitioner is illiterate lady. Therefore, all such points are squarely applicable herein. But I am afraid in passing mandatory order for the reason that question entitlement because of non-membership of the deceased is pertinent here. However, since under paragraph 8 of the scheme, 1995 Regional Provident Fund Commissioner is the authority for resolution of doubts, in disposing of this writ petition I direct the Regional Provident Fund Commissioner to resolve the doubt or dispute in accordance with law within a period of two months from the date of communication of this order upon giving fullest opportunity of hearing and bypassing a reasoned order thereon. For the purpose of effective adjudication the writ petition along with the annexures relied upon by the petitioner and the records relied upon by the respondent will also be treated to be part and parcel of the process of resolution. ( 5 ) HOWEVER, no order is passed as to costs. ( 6 ) LET an urgent xeroxed certified copy of this judgment, if applied for, be given to the learned Advocates for the parties within two weeks from the date of putting the requisites. Writ petition disposed of.