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Madhya Pradesh High Court · body

2014 DIGILAW 716 (MP)

Anjani Upadhyay v. State of M. P.

2014-06-24

SUJOY PAUL

body2014
Judgment: Sujoy Paul, J. 1. The petitioners, retired teachers of respondent No. 4-unaided private institutions, have filed this petition seeking mandamus for the respondents to release the funds, which are deposited in the fixed deposit. The amount is claimed with interest at prevailing rate. 2. The petitioners retired on attaining the age of superannuation as approved teachers of respondent No. 4-Institution. It is not in dispute between the parties that the respondent No. 4 is a private institution getting grant in aid from the Government. 3. The petitioners' contribution was deposited in FDRs in the joint signatures of Principal of respondent No. 4-Institution and respondent No. 2 (DEO). The petitioners have disclosed their individual account numbers in paras 5.3 and 5.4 of the petition. 4. It is submitted by the petitioners that they do not want the benefit of pension scheme and the amount deposited by them for pension scheme be transferred to their personal account with interest. Declarations in this regard are already submitted before the authorities. Copies of declarations are Annexure P/3 Colly. It is prayed that all the petitioners are senior citizen and at the old age needs money to settle down and discharge social obligations. Thus, on their consent the amount be directed to be released from the FDRs or be transferred to their personal account. 5. Shri C.P. Singh, learned counsel for the respondent No. 4 submits that he has no objection. However, Shri A.S. Rathore and Shri R.K. Goyal, learned counsel for the State and PF Organization respectively submitted that there are legal impediments for doing the same. It is urged that the respondent No. 4-Institution is covered under the provisions of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (for brevity, the "PF Act"). The Institution has not paid the separate contribution to the PF Organization. The petitioners are covered under 1971 Pension Scheme. As per the order of this Court in WP No. 935/2012 dated 19.4.2012, the Assistant Provident Fund Commissioner has passed an order under Section 7-A of the PF Act. Since the respondent No. 4-Institution is covered under the PF Act, the requisite contribution needs to be paid by the respondent No. 4. In absence of making said payment, the amount cannot be disbursed to the petitioners. Since the respondent No. 4-Institution is covered under the PF Act, the requisite contribution needs to be paid by the respondent No. 4. In absence of making said payment, the amount cannot be disbursed to the petitioners. He submits that the order passed under Section 7-A of PF Act makes it clear that the respondent No. 4 has to make payment of contribution. There is no escape from statutory contribution. He relied on the orders passed in this regard by PF Authorities on 22.4.2013 (Annexure P/7) and 26.3.2014 (Annexure P/8). 6. Mrs. Ami Prabal, learned counsel for the petitioners submits that Section 7-A order may be called in question by the employer but that legal battle may consume sizable amount of time. The petitioners are in dire need of money and cannot wait for outcome of said legal battle. By placing reliance on an order dated 5.2.2013 passed in WP No. 3392/2011 (Rajendra Mohan Khatri vs. State of MP and others) (Annexure P/6), it is prayed that amount be directed to be transferred to petitioners' account. 7. I have heard learned counsel for the parties and perused the record. 8. This is not in dispute between the parties that the petitioners were teachers/employees of respondent No. 1-aided institution. They have retired on attaining the age of superannuation. Their contribution towards provident fund is deposited in FDRs under the joint signatures of Principal and DEO. The petitioners, in nutshell, have expressed their wish to waive the right of pension arising out of the scheme made under the PF Act. For the reasons stated above, the petitioners prayed for release of the amount because they are in dire need of the same. The only objection put forth by respondents No. 1 to 3 is based on the statutory provisions flowing from PF Act. Shri Goyal submits that in view of the order passed under Section 7-A of the PF Act and the judgments prevailing on the field, the respondent No. 4 cannot escape liability to pay contribution of its employees. 9. This Court by a consent order in Rajendra Mohan Khatri (supra), directed the respondents therein to release the CPF amount to the petitioner. In the present case the basic question is whether petitioners can waive their right to get benefits under the PF Act and claim refund of the contribution which is lying in the FDRs ? 10. 9. This Court by a consent order in Rajendra Mohan Khatri (supra), directed the respondents therein to release the CPF amount to the petitioner. In the present case the basic question is whether petitioners can waive their right to get benefits under the PF Act and claim refund of the contribution which is lying in the FDRs ? 10. In the opinion of this Court, the right to get certain amount under pension scheme made under the PF Act is a statutory right. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a Statute subject to a condition that no public interest is involved therein. I find support in my view from the judgment of Supreme Court, reported in (2004) 8 SCC 229 (Krishna Bahadur vs. Purna Theatre and others). The Apex Court in (2013) 10 SCC 83 (General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs. Ikbal and others) opined that a statutory provision for the benefit of borrower, even if mandatory, can always be waived by a party/parties for whose benefit such provision has been made (para 19). 11. In the instant case, the petitioners can waive their claim/right to get terminal dues/pension as per the PF Act or scheme made thereunder. This act of waiver on the part of the petitioners will not affect other retired employees, who have not chosen to waive their right. Thus, such waiver by the petitioners will not be against the public interest. In this view of the matter, in my view, the petitioners can be permitted to waive their right to get pension/dues as per the scheme prepared under the PF Act. 12. For the reasons stated above, the petition is allowed. The respondents shall treat the right of the petitioners to get pension under the PF Act as waived. The respondents shall forthwith deposit the fund of the petitioners, which is presently lying in the FDRs, stated above, in their personal account. This exercise must be completed within thirty days from today. It will not be open for the PF Organization to take any coercive action against the respondent No. 4 for non-payment of PF Contribution of the petitioners. 13. Petition is allowed to the extent indicated above. No costs.