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Himachal Pradesh High Court · body

2007 DIGILAW 239 (HP)

DAYALKHOO v. H. P. S. E. B.

2007-06-15

M.R.VERMA, VIJAY PAL SINGH

body2007
JUDGEMENT M.R. Verma, J. (Retd.) Chairman:-The applicant herein has prayed for directing the respondents to provide family pension to her since May 18, 1978 will all consequential benefits and to pay her the cost of the original application. 2. The case of the applicant in brief is that her husband was engaged as a Beldar by the respondents and was given employment on work charged basis on and w.e.f. August 1, 1963 and was appointed as a regular T-Mate on August 15, 1972 and he worked as such till his death on May 15, 1978. The applicant represented to the respondents to provide pension to her and provisional family pension was provided to her. However, at a later stage the same was stopped. The case of the applicant further is that the respondent are duty bound to give her family pension and denial of such pension is wrong, illegal and unconstitutional.Hence this original application. 3. The respondents contested the claim and filed reply. It has been claimed that pursuant to his transfer the husband of the applicant was relieved vide order dated April 22, 1974 but he did not join at the new place of posting till he was reported to have expired on May 18, 1978. The Resident Engineer Bassi was not aware of transfer/joining of the husband of the applicant till the receipt of representation. Since the case was old, therefore, with a view to avoid delay provisional pension was allowed to the applicant. At a later stage on further scrutiny the deceased was not found entitled for the pension because he was member of Contributory Provident Fund and had not opted for the Employees Family Pension Scheme as per the instructions Annexure-RA-II and had also not reimbursed to the respondents appropriate Contributory Provident Fund as per the scheme. As a result the provisional pension was stopped but other permissible monetary benefits were granted. It is also claimed that in fact the deceased had not rendered services as T-Mate w.e.f. April 22, 1974 to May, 1978. Therefore, the applicant is not entitled for the relief claimed. 4. The applicant filed rejoinder wherein the grounds of defence as taken in the reply were refuted and the claim as made out in the original application was reaffirmed. 5. Therefore, the applicant is not entitled for the relief claimed. 4. The applicant filed rejoinder wherein the grounds of defence as taken in the reply were refuted and the claim as made out in the original application was reaffirmed. 5. It is pertinent to mention here that on November 8, 2001 when the arguments were partly heard in the matter, the respondents were directed to produce the service book and details to contribution by the applicant to C.P.F. account. This order however was not complied with by the respondent in its entirety. Therefore, the following orders were passed on April 17, 2002:- "The respondents are directed to file an affidavit to the effect as to whether in pursuance of the H.P.S.E.B office order filed as Annexure-R/ll with their reply, the respondents had sought options from all other employees regarding option for family pension or such options were not called for in respect of any employee and all the other employees had given option suo moto in pursuance to Annexure-R/II." 6. Pursuant to the aforesaid order, supplementary affidavit was filed on behalf of the respondents about the manner of asking the option of the employees for family pension further stating that such cases were to be dealt with as per the annexure-R/ll containing the relevant provisions for providing family pension to the employees of the respondents. 7. We have heard the learned counsel for the parties and have also perused the material placed on record. 8. It is not in dispute that the deceased would have been entitled for pension/family pension if he had opted for the same as per the office order Annexure-RA.II. Evidently when such an option has to be given by an employee, he has to be made aware of the relevant provisions providing for giving of option to opt for one or the other of the available services benefits. Despite the aforesaid orders dated April 17, 2002, the deponent in the supplementary affidavit has not stated about the precise manner in which the options were called for from the employees. The only statement in the supplementary affidavit in this regard is that the relevant scheme Annexure-RA-II was framed in 1974 and was widely circulated in HPSEB as was evident from the endorsements made in Annexure-RA-II. 9. The only statement in the supplementary affidavit in this regard is that the relevant scheme Annexure-RA-II was framed in 1974 and was widely circulated in HPSEB as was evident from the endorsements made in Annexure-RA-II. 9. The endorsements in Annexure-RA-II is dated November, 16, 1974 where under copies of Annexure-RA-II had been forwarded to Chief Engineer (P) and (OP), Secretary, Superintending and Executive Engineers, Chief Purchase Officer, Law Officer, Labour Officer, Chief Accounts Officers and the P.S/P. As of the Chairman and Members of the HPSEB. Evidently, these endorsements cannot in any manner be said to be an information about the scheme and provisions about option to the employee(s) concerned concluding the deceased. 10. It is not the case of the respondents that copy(s) of Annexure-RA-II were ever circulated under covering letters or otherwise to each effected/concerned employee and his signatures in token of having come to know of the provisions for giving options to opt for family pension as provided in Annexure-RA-II were obtained. 11. It may also be pointed out that Annexure-RA-II purports to have been issued on November 16, 1974 whereas according to the version of the respondents themselves the deceased was transferred from I&C Division Joginder Nagar to Electrical Division Dehra and was relieved on April 22, 1974 but he did not join at the place of his posting after transfer till he was reported to have died on May, 1978. In view of this version of the respondents it is clear that the deceased did not attend office after 22.4.1974 and thus could not be aware of the contents of Annexure-RA-II issued on November 16, 1974 and the respondents admittedly did not bring the contents of Annexure-RA-II to the notice of the deceased nor asked for his option at any point of time. The deceased thus had no occasion and opportunity to know about the contents of Annexure R-II and opt for family pension. 12. It may be pointed out here that it is admitted before us that the aforesaid alleged absence of the deceased had been regularized by allowing leave of the kind due to the deceased. 13. After the death of the husband of the applicant, she stated claim for family pension which was provisionally allowed for some time. 12. It may be pointed out here that it is admitted before us that the aforesaid alleged absence of the deceased had been regularized by allowing leave of the kind due to the deceased. 13. After the death of the husband of the applicant, she stated claim for family pension which was provisionally allowed for some time. In the absence of the deceased having not been afforded opportunity to opt for family pension, as concluded above, the claim for family pension laid by the applicant must in all fairness be treated and deemed to the requisite option for family pension. 14. It was contended for the respondents that there was a condition precedent to get family pension even if option was given and such condition was to reimburse to the respondents appropriate contributory Provident Fund as per the scheme and the deceased had not made such reimbursement and amount of such fund has been fully paid to the applicant, hence pension cannot be allowed for want of fulfilling the said condition. 15. In the given circumstances of the case mere non reimbursement out of Contributory Provident Fund by the deceased who was unaware of it, is no reason to deny family pension to the applicant subject to the right of the respondents to deduct such amount from the family pension payable to the applicant as would have been reimbursable by the deceased to the respondent Board for being entitled for family pension as per the scheme. 16. For the reasons stated hereinabove we are of the considered view that the applicant is entitled for the family pension as claimed by her. 17. As a result the respondents are directed to pay family pension to the applicant w.e.f May 18, 1978, the date of death of her husband as permissible under the Scheme within six weeks of the passing of this order. However, the respondents will be entitled to deduct from the amount of arrears of pension, payable to the applicant, such amount as already paid to the applicant as provisional pension if not already deducted from the amounts payable/paid to the applicant and the amount as would have been reimbursable by the deceased to the respondents from his Contributory Provident Fund had he opted for family pension. 18. This original application is disposed of in terms of the above orders with no order as to costs.