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2012 DIGILAW 665 (PAT)

Ram Kripal Singh v. Union Of India

2012-04-23

KISHORE KUMAR MANDAL

body2012
JUDGMENT K. K. Mandal, J. Since common facts and issues are involved in this batch of writ petitions they have been heard together with the consent of the parties and are being disposed of by common order. Facts are not much in dispute. For the purpose of disposal of these applications, this Court would notice relevant facts from CWJC No. 3697 of 2009. 2. Petitioner served the Rohtas Industries, Dalmianagar in the District of Rohtas (for short 'the Industry') which pulled down its shutter on 07.07.84 and went in liquidation. While working in the said Company on a supervisory post he retired with effect from 07.12.1994 on attaining 60 years of age. He was a member of Employees' Provident Funds Scheme, 1952. The respondent-Employees' Provident Fund Organization (for short 'the Organization') put up a notice through press on 10.03.98 (Annexure-2) granting such employees of the Company who retired or left the employment between 01.04.1993 and 15.11.1995 liberty to submit application exercising option for becoming member of the Employees' Pension Scheme 1995 (for short 'Pension Scheme') on or before the stipulated date. Petitioner submitted the forms in the format within time on 25.03.1998 (Annexure-3). This Court in the pending Company Petition no. 3 of 1984 vide order dated 14.12.2001 (Annexure-4) directed the official liquidator (O.L.) to scrutinize the applications and forward them to the respondent-Organization and the Regional Provident Commissioner, Patna (respondent no.3) was directed to verify/scrutinize them as per extant Rules/scheme and, on acceptance thereof, to sanction pension. The O.L. scrutinized the applications and forwarded them to the Organization vide letter dated 17.01.2002 (Annexure-4/A). Respondent no.3 made detailed verification of those applications and by a communication dated 23.7.2002 (Annexure-5), while returning those applications, for want of necessary informations/certificates as also non submission of the deposit of the amount received at the specified rate of interest, clarified that those who attained the age of 60 years prior to 01.04.1993 are not eligible for exercising option under the pension scheme. As per the aforesaid letter the petitioner found himself eligible and a sum of Rs. 12,108/-towards contribution of the employer and the employee was deposited. The matter was again referred to the Organization. As per the aforesaid letter the petitioner found himself eligible and a sum of Rs. 12,108/-towards contribution of the employer and the employee was deposited. The matter was again referred to the Organization. The Respondent-Organization by a communication dated 27.9.2002 (Annexure-7) again instructed the Company to deposit the interest part of the contribution(s) at the rate of 8.5% per annum explaining the rates at which the same would be charged and required to be deposited. In accord with the said instruction the balance amount in the sum of Rs. 10,995/- was deposited by Challan (Annexure-8) on 23.10.2002. The respondent no.3, being the competent authority on being satisfied about the eligibility of the petitioner and the compliance of the requirements of the Rule(s)/Scheme issued pension payment order dated 29.11.2002 (Annexure-9) enabling him to draw pension at the rate of 500/- per month as also a sum of Rs. 42,883/- only towards arrears of pension under the said scheme. By communication dated 5.12.2007 (Annexure-10) the respondent-Organization informed the petitioner that his option/application was wrongly processed and approved for grant of pension under the Pension Scheme and the matter was referred to the higher authority of the respondent-Organization for clarification and pending further decision payment of pension was being kept in abeyance. The petitioner filed a representation on 14.12.2007 (Annexure-11) explaining therein the categories of workmen employed in the Company who were to retire after the age of 60 years. It was further clarified that as per the press communiqu issued by the Organization (Annexue-2) he was eligible as he superannuated between 01.04.1993 and 15.11.1995. By yet another representation dated 25.4.2008 (Annexure-12), he submitted some certificates regarding payment of family pension amount from January to March, 2008 which was credited in the Account. Petitioner thereafter filed few more representations (Annexures-13 and 14) requesting the organization to continue payment of family pension. The respondent-Organization by communication dated 8.9.08 (Annexure-16), directed the petitioner to furnish documents to support his claim which was submitted on 20.09.2008 along with representation (Annexure-17). The respondents thereafter issued an order dated 23.9.08 informing the petitioner that as per instruction received from the higher authority of the Organization he was not eligible for grant of pension under the Pension Scheme as he had exercised option after attaining the age of 60 years. The respondents thereafter issued an order dated 23.9.08 informing the petitioner that as per instruction received from the higher authority of the Organization he was not eligible for grant of pension under the Pension Scheme as he had exercised option after attaining the age of 60 years. The decision to cancel the P.P.O. was also communicated with a further condition that undue pension paid to and received by him would be recovered (Annexure-1). The consequential order was thereafter passed on 04.12.2008 whereby a sum of Rs. 59,283/- together with interest at the rate of 8.5% per annum was directed to be recovered and he was directed to deposit the same leading to filing of the writ petition. 3. I have heard the counsel for the parties. Mr. Janardan Prasad Singh appeared on behalf of all the petitioners. Mr. Prasant Sinha made submissions on behalf of the respondent nos. 2 to 4. 4. Learned counsel for the petitioner submitted that the respondents in the light of the order of this Court examined the claim of the petitioner for grant of pension under the Pension Scheme and the competent authority (respondent no.3), on being satisfied with the entitlement of the petitioner to opt for membership of the Pension Scheme and on completion of all requirements of law, issued the pension payment order (Annexure-9) enabling the petitioner to draw pension under the Pension Scheme @ Rs.500/- per month and arrears thereof. It has been submitted that vide communication dated 23.07.02 (Annexure-5), the competent authority returned the application for want of certain informations/ certifications/non submission of returns in the light of the provision of the Act as well as the Circular /clarificatory instruction issued in this regard vide Circular no. 2(4) Clarifications/96 dated 17.07.96. It was clarified thereunder that those employees who attained the age of 60 years prior to 1.4.93 would not be eligible for exercising option under the pension scheme. The defects in furnishing the information, certification/non submission of returns was/were thereafter removed inasmuch as the share of the employer as well as the employee was deposited vide Annexure-6/A and subsequently in the light of communication contained in Annexure-7 the interest part thereof was also deposited vide Challan at Annexure-8/A and only thereafter the competent authority of the Organization issued the pension payment order (Annexure-9) and the petitioner was allowed to draw monthly pension including arrears thereof. Nearly 05 years thereafter the respondents, by communication dated 5.12.2007 (Annexure-10), issued a notice stating therein that petitioner opted after attaining the age of 58 years while he was not the member of the Provident Funds Account, and as such, the option/application submitted by him was wrongly processed/approved. The petitioner, in his reply to the said notice (Annexure-11), explained the relevant facts asserting therein that as per the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and the Employees' Pension Scheme, 1955 framed thereunder every employee of the Provident Funds Scheme, 1952 who had not attained the age of superannuation (60 years) prior to 1.4.93 would be entitled to exercise option as per the notice published by the Organization (Annexure -2). Petitioner having superannuated on attaining the age of 60 years on 7.12.94 was therefore entitled to opt under the relevant provision of the Pension scheme. The competent authority of the Organization (respondent no. 3), on being satisfied about the eligibility of the petitioner to opt for the Pension Scheme, accepted the same and issued the pension payment order, and as such, there was no occasion for him to refer the matter to the higher authority and pass the order dated 23.9.98 (Annexure-1) denying pension on the ground that he exercised the option under para 7(3) of the Pension Scheme after attaining the age of 60 years. It has been contended that the petitioner, on a representation having been made by the respondents vide the notice (Annexure-2) and the subsequent communications dated 23.7.02 (Annexure 5) and Annexure-7, altered his position to his disadvantage and as such based on the principle of promissory estoppel the respondent would be wholly unjustified in resiling therefrom and to deny payment of pension. He relies in this regard on the following judgment(s) :- (i) State of Bihar and Others Vs. Kalyanpur Cements Ltd., (2010) 3 SCC 274 . (ii) Hem Nandan Sharma Vs. The Union of India (UOI) and Others 5. It is also submitted that the Pension Scheme is a beneficial scheme for the welfare of the workmen who have no protecting umbrella after retirement. 6. Kalyanpur Cements Ltd., (2010) 3 SCC 274 . (ii) Hem Nandan Sharma Vs. The Union of India (UOI) and Others 5. It is also submitted that the Pension Scheme is a beneficial scheme for the welfare of the workmen who have no protecting umbrella after retirement. 6. While assailing the consequential order dated 5.12.2008 (part of Annexure-1) directing the petitioner to deposit the pension amount paid to and received by him with interest, learned counsel submitted that the same would be unsustainable in law in view of the fact that the authorities on being satisfied about the eligibility of the petitioner to opt for the pension scheme and become a member thereof authorized payment thereof. It is not the case of the respondents that any inaccurate fact was furnished by the petitioner. In other words, no mis-representation was made by the petitioner in obtaining the pension payment order duly issued by the competent authority. In the setting of these facts, relying on a judgment of the Hon'ble Apex Court in the case of Syed Abdul Qadir and Others Vs. State of Bihar and Others, , it has been contended that this Court being a Court of equity should not allow the respondents to recover the amount paid to and received by him under valid order/authorization particularly when there was no submission of inaccurate facts and thereby any mis-representation on the part of the petitioner relying whereon the competent authority earlier found him eligible and authorized pension. Per contra, learned counsel for the respondents submitted that on re-verification it was found that the petitioner was not eligible as per the provision of the Pension Scheme and as such the respondent was justified in passing the impugned order. It is submitted that the Rule of Promissory estoppel would not operate against statute. Any mistake committed in granting the pension de hors the provision of the Pension Scheme can always be corrected. The mistake on the part of the authorities would not vest any legal right in the petitioner to claim the benefit. Learned counsel further submitted that in view of the explanation attached to the definition of member in para 2 (ix) of the Pension Scheme an Employee shall cease to be the member of Pension Fund from the date of attaining 58 years of age or from the date of vesting admissible benefits under the Scheme, whichever is earlier. Learned counsel further submitted that in view of the explanation attached to the definition of member in para 2 (ix) of the Pension Scheme an Employee shall cease to be the member of Pension Fund from the date of attaining 58 years of age or from the date of vesting admissible benefits under the Scheme, whichever is earlier. According to him, as per para 6(d) read with 7(3) of the Pension Scheme the petitioner could not have opted for and become member of the Pension Scheme. As per para 6(A) of the Pension Scheme such member shall continue till he attains the age of 58 years or he avails the withdrawal benefit to which he is entitled under para 14 of the scheme. In the submission of the respondents since petitioner had attained 60 years of age and was not a member of the Provident Fund when he exercised the option he could not have legally been allowed to become member of the Pension Scheme and draw benefit thereunder. 7. I have considered the submissions of the parties and perused the materials on record. 8. This Court would first examine the submission of the petitioner that the respondents, in the facts and circumstances of the case, would be bound by the principle of promissory estoppel. It is the contention of the petitioner that the respondents by diverse communications including notice published in press (Annexure -2) represented that those employees of the Industry who retired and/ or left the job between 1.4.93 to. 15.11.95 would be entitled to exercise option for becoming a beneficiary under the Pension Scheme and acting thereon he altered his position to his detriment inasmuch as the contributions ( both employer and the employee) together with interest was deposited whereafter, on verification, the competent authority after being satisfied with the compliance thereof issued the pension payment order. The doctrine of promissory estoppel is an equitable doctrine. The Supreme Court, while elucidating the said principle in Kasinka Trading and another, etc. etc. Vs. Union of India and another, (1995) 1 SCC 274 , held that the doctrine of Promissory estoppel is applicable against the government also to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority to act contrary to law. etc. Vs. Union of India and another, (1995) 1 SCC 274 , held that the doctrine of Promissory estoppel is applicable against the government also to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority to act contrary to law. It has, thus, been settled by judicial pronouncement that if the relevant provisions of law do not permit any action/decision then this Court tooling the said principle would not direct the State or public officer to do or continue to do the same which is otherwise impermissible in law. The said submission of the petitioner is not worth acceptance. 9. There is no dispute that the petitioner was the member of the Family Provident Funds as he was paid the Provident Fund amount on superannuation. There is also no controversy that the pension scheme itself is a scheme for the benefit of the employees/workmen ( Lt. Governor of Delhi and others Vs. Const. Dharampal and others, (1990) 4 SCC 13 "). The parties have not addressed me on the status of the petitioner in the light of the provision of the Act and the Employees' Family Pension Scheme, 1971. Objection raised by the respondent is that the petitioner exercised the option under para 7(3) of the Pension Scheme after attaining the age of 60 years, which was not permissible under the Act and the Pension Scheme framed therunder. It was not valid exercise of option. The petitioner could not have opted to become member of the Pension Scheme The petitioner was a member of the Provident Fund Scheme of the Unit (an exempted establishment). At the time of exercising such option, he had completed 60 years of age and was not a member of the Provident Fund. The stand of the respondents can be ascertained from the communication dated 23.7.02 (Annexure- 5).Relevant part(s) whereof are extracted hereinbelow:- In this regard it is informed that the question of accepting option to become member of EPS'95 in respect of employees of all the unit of Rohtas Industries has been examined with reference to standing instruction and the same are not acceptable for want of information/ certification/ non submission of returns and other allied provisions of the related scheme as elaborated overleaf. In view of grounds noted below these option forms are returned herewith: 01. In view of grounds noted below these option forms are returned herewith: 01. As per Clause VI of the chapter clarifications in the hand book of EPS'95 of EPFO New Delhi at page 28 the following provision is made "A.P.F. member who retires between 1.4.93 and 15.11.95 and got his P.F. A/C settled and was not a member of the erstwhile EFP scheme 1952 is not eligible to exercise his option in favour of EFPS 1971/EPS'95. (CPFC Circular no. 2(4) clarifications/96 dated 17.7.96.) Secondly those who attained the age of 60 yrs. Prior to 1.4.93 are not eligible for exercising option under EPS' 95. Sub para (d) of para 6 and sub para 3 of para 7 of the Scheme read as under:- 6..xxxxxx (a).xxxxxx (b)xxxxxxx. (c)xxxxxxxxx. (d) who has been a member of the Employees' Provident Fund or of Provident Funds of factories and other establishments exempted by the appropriate Government u/s 17 of the Act or in whose case exemption has been granted under Paragraph 27 or 27A of the Employees' Provident Fund Scheme, 1952, on 15th November, 1995 but not being a member of the ceased Employees' Family Pension Scheme, 1971 opts to exercise his option under paragraph 7] 7(1).xxxx. 7(2).xxxx 7 (3) Members referred to in sub-paragraph (d) of paragraph 6 shall have the option to join the Scheme as per the provisions of Paragraph 17 from 16th November, 1995.] 10. There is no dispute that on the day the petitioner exercised the option as per the provision of the Scheme he had been paid off provident fund amount by the employee and thus ceased to be a member of the Fund. Paragraph 6(A) of the Scheme states that a member of the employees Pension Fund shall continue to be such member till he attains the age of 58 years or he avails the withdrawal benefit to which he is entitled under para 14 of the Scheme, or dies, or the pension is vested in him in terms of para 12 of the Scheme whichever is earlier. The respondents by communication dated 23.7.2002 (Annexure-5) made it quite explicit that a provident fund member who has retired between 1.4.93 and 15.11.95 and got his provident fund settled and paid would not be treated as a member of the erstwhile EPF Scheme, 1952 and would thus not be eligible to exercise option and that those who attained the age of 60 years prior to 1.4.93 would also not be eligible for exercising option under the Pension Scheme. From the materials brought on record it appears that the petitioner had on attaining the age of superannuation /(60 years) on 7.12.94 was settled and paid the amount. Any benefit under any statutory provision or scheme framed thereunder has to be granted strictly in accordance with the provisions thereof. The petitioner on the day exercised the option was not eligible to do so in terms of para 6 (d) read with para 7(3) of the Scheme. The stand of the respondents aforesaid seems to be justified in holding that the petitioner was not entitled to exercise option and become member of the pension scheme and grant thereof was contrary to the provision of the scheme. 11. Another connected issue is also to be answered. The petitioner has submitted that at no point of time while complying with the procedure stipulated in the notice, communication of the Organization dated 23.7.2002 (Annexure-5) as well as the communication enclosed as (Annexure-7) any wrong fact was furnished inducing the respondents to act thereon and grant the pension. If that be the case then this Court has to examine whether it would be equitable on the part of the respondents in directing him to refund /pay back the pension amount received by him under pension payment order dated 29.11.2002 (Annexure-9). Taking into account entire relevant facts and circumstances appearing from the record particularly the period lapsed between the grant of pension and the notice issued in this regard on 5.12.2007 (Annexure-10), this Court in the light of ratio laid down in Syed Abdul Qadir (supra) would find that mistake bonafide or otherwise was on the part of the respondents in allowing pension in the sum of Rs. 500/- per month being the result of wrong interpretation/misrepresentation of the rule/scheme and there was no submission of inaccurate facts/misrepresentation on the part of the petitioner. 500/- per month being the result of wrong interpretation/misrepresentation of the rule/scheme and there was no submission of inaccurate facts/misrepresentation on the part of the petitioner. The respondents would, therefore, not be justified in directing the refund of the pension amount paid to and received by the petitioner under orders of the respondent Organization. In view of the discussions made hereinabove the writ petitions are disposed of in the following terms:- (1) The Order dated 23.09.2008 (Annexure-1) is upheld. (2) The consequential order dated 5.12.2008 directing the petitioner(s) to deposit the amount paid to and received by him/them with interest is quashed and set aside. The petitioner(s) are, thus, not required to deposit /re-fund the amount paid to and received by each of them. (3) Parties will bear their own costs.