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2014 DIGILAW 1155 (JHR)

Damodar Valley Corporation v. Mailee Devi

2014-11-26

R.R.PRASAD, VIRENDER SINGH

body2014
ORDER 1. Heard learned counsel appearing for the appellants and the learned counsel for the respondents. 2. The husband of respondent Mailee Devi, who was an employee of Bokaro Thermal Power Station, a unit of Damodar Valley Corporation, died in harness on 18/02/1987. After two years, respondent wrote a letter to the authority of the D.V.C. to pay her family pension. Nothing was done in this respect. The respondent went on claiming family pension. However, the claim of the respondent of family pension was rejected. As against that an appeal was preferred, which was rejected and the order rejecting claim was communicated vide letter dated 14/07/2008. The said order rejecting the claim of family pension was affirmed by the order, which was communicated under letter dated 08/05/2009. 3. Being aggrieved with those orders, a writ application was preferred, wherein plea was taken that the claim of the respondent of family pension had been rejected on the ground that no option has been exercised in terms of the office memo dated 27/03/1989, stipulating therein that whosoever are the member of the Scheme of D.V.C C.P.F, they would be taken to be the members of Pension-cum-Gratuity Scheme provided that they do opt by 31st of August, 1989 to remain under DVC CPF Scheme. But, since, the husband of the respondent died on 18/02/1987, the question of making option on the part of the husband of the respondent does not arise and, as such, he would be deemed to have been taken under CPF Pension-cum-Gratuity Scheme. 4. The learned Single Judge after having regard of one of the clauses of the office memo dated 27/03/1989, did hold that the option was to be exercised for remaining in D.V.C. C.P.F. Scheme and not for opting the pension and gratuity scheme. Further it was held that Para 2 (b) of the office memorandum dated 27/03/1989, does stipulate that even if the option has not been exercised by an employee for switching over from DVC CPF Scheme to DVC Pension-cum-Gratuity Scheme, the benefit of pension would be granted to the employee. The learned Single Judge by holding so did find that the respondent is entitled to get family pension. 5. Being aggrieved with that order, this letters patent appeal has been filed. 6. Mr. The learned Single Judge by holding so did find that the respondent is entitled to get family pension. 5. Being aggrieved with that order, this letters patent appeal has been filed. 6. Mr. Raj Nandan Sahay, learned counsel appearing for the DVC submits that the learned Single Judge while allowing the writ petition has misread the provision of the office memorandum dated 27/03/1989 as even in a case where the employee died before 27/03/1989 the day on which new Scheme came into being the widow or legal representative or even the nominee was required to opt for new DVC pension Scheme. In case of failure, the widow/nominee or the legal representative cannot have a claim over DVC pension Scheme and thereby, the Court has certainly committed illegality in allowing the writ petition. 7. The submissions advanced on behalf of the appellant was countered by the learned counsel for the respondent. 8. In view of the claim and counter claim, the provision as contained in office memo dated 27/03/1989 needs to be taken notice of, which reads as follows: “Following the Government of India's Orders on the subject, the Corporation is pleased to decide as under: (1) All members of DVC CPF who were in service on 1.1.1986 or who are still in service on the date of issue of this notification, shall be deemed to have come over to the DVC Pension-cum-Gratuity Scheme subject to their not specifically exercising option for DVC CPF Scheme. The option will have to be exercised and conveyed to the Accounts Officer (Fund), Central accounts Office, DVC within 31st August, 1989 in the form annexed herewith. All members of DVC CPF, from whom such option will have not been received within that date, will be deemed to have come over to the Pension Scheme. (2) The members of the DVC CPF, who were in service on 1.1.1986: (a) But have since retired before the issue of this Notification and in whose case final settlement of their CPF Accounts have been made, shall also have an option to come over to the Pension Scheme provided they surrender the amount of the corporation's contribution paid in settlement of their CPF Accounts together with interest thereon for the period between their getting the amount of the contribution from the corporation and their refunding the same for the purpose of availing Pension-cum-gratuity Scheme. (b) But have since retired and in whose case no payment of the Corporation's contribution or any part thereof has been made, will be allowed Retirement benefits as if they were covered by DVC Pension-cum-gratuity Scheme unless they specifically opt to retain their CPF. (c) But have since died either before or after their retirement, their cases shall be settled in accordance with Para (1) or 2(a) above as the case may be. Option in such cases shall be exercised by the widow/widower/nominee/nominees/legal survivor within 31.8.1989 to become eligible for the benefit under the DVC Pension Scheme. (3) The option once exercised for the above Scheme shall be final. In the type of cases covered by para 2(a) & (c) above members of CPF electing for pension as per above Scheme shall be liable to refund corporation's contribution with interest thereon drawn at the time of retirement within 31st August, 1989. Simple interest on the amount for refund will be payable at the rate of 10% per annum for the period of delay beyond 3 months before acceptance of their option. (4) Action to discontinue the subscription/contribution to CPF A/c. may be taken only after the last date specified for exercising option is over. (5) This O.M. will not apply to employees who on reemployment are allowed to subscribe to DVC C.P. Fund. This will also not apply to employees borne on work-charged establishments till they are brought under Regular cadre/Establishment and employees who are governed by the Coal Mines Provident Fund. (6) All new entrants recruited after issuance of this O.M. may be allowed, however, to opt either for CPF or for GPF as they may choose.” 9. We, having gone through the said provision, do find ourselves in agreement with the submissions advanced on behalf of the appellant that the case of the respondent fall within the category of 2(c) of the said memorandum, which does stipulate that in a case of death of an employee the widow/nominee/legal representative was required to opt by 31/08/1989 to become eligible for the benefit under the D.V.C pension Scheme. If one fails to give option, the deceased employee would be deemed to have remained in previous Scheme called as D.V.C. C.P.F Scheme and, accordingly, widow/nominee or legal representative of the deceased would be paid the amount which the deceased was entitled to get under that Scheme. 10. If one fails to give option, the deceased employee would be deemed to have remained in previous Scheme called as D.V.C. C.P.F Scheme and, accordingly, widow/nominee or legal representative of the deceased would be paid the amount which the deceased was entitled to get under that Scheme. 10. Under the circumstances, we do find that the learned Single Judge erred in allowing the writ petition. Hence, the order dated 24/10/2013, is hereby set aside. 11. Accordingly, we do find that the respondent is not entitled to get family pension. 12. However, the respondent be paid the amount which is payable under the Scheme of DVC CPF at the earliest with interest if it is payable. 13. Thus, this appeal stands disposed of.