JUDGMENT : K.M. THAKER, J. 1. Heard Mrs. Pahwa, learned advocate for the petitioner and Mr. Dave, learned advocate for the respondent-Provident Fund Department. 2. In present petition, the petitioner has prayed, inter-alia, that:- “10(A) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order and/or direction, quashing and setting aside the impugned order dated 21.9.2005 passed by respondent No. 1 (at Annexure A) and further be pleased to direct the respondents to pay the benefit due and payable to the petitioner under the Employees Deposit Linked Insurance Scheme along with interest forthwith.” 3. The petitioner herein is the widow/legal representative of the employee in an establishment named Wadhwan Mechanical Works. The widow/legal representative of the workman of above named establishment has taken out present petition and prayed for above quoted relief on the ground that she is beneficiary of the deceased employee as well as the Employees Deposit Linked Insurance Scheme (hereinafter referred to as “the Scheme”) however, the respondent department has failed to extend and pay benefits available under the said Scheme. 3.1 Aggrieved by the said default of the department, the petitioner has taken out this petition. 4. The respondent department has opposed the petition by filing reply affidavit wherein it is averred and stated that:- “5. Regarding para nos. 4.1, 4.2 and 4.3, I most respectfully state and submit that, according to the memo of the petition, the husband of the petitioner died on 4-12-2004, he was working/an employee of the M/s. Wadhwana Chemical Works, Ranpura, Ahmedabad and also a member of EDLI Scheme, having No. GUJ/182/507. Further, from 5(IF) which field up by the petitioner was sent back to her by the respondent No. 1 vide order dated 18-8-2005 on the ground that the petitioner's husband was on leave during the period of 1-7-2002 to 4-12-2004. So, I most humbly state and submit that as per form 3A submitted by the establishment M/s. Wadhwana Mechanical Industries, no wages shown from July 2000 onwards till his death and shown as “absent.” It is necessary to give proof to remain absent continuously since July 2000 from the petitioner. 6. Regarding para 4.4 of the memo of petition, I respectfully state and submit that the widow claim has been settled in favour of the petitioner. 6. Regarding para 4.4 of the memo of petition, I respectfully state and submit that the widow claim has been settled in favour of the petitioner. This office has already passed claim of Provident Fund amount and pension in favour of widow of the member, i.e. petitioner. I most respectfully state and submit that EPF has already made the payment of PF on opening balance of 2000-2001 with interest without contribution.” 5. Mrs. Pahwa, learned advocate for the petitioner, submitted that the respondent authority has misdirected entire matter and has not considered petitioner's claim in right perspective as well as in light of the provisions under the Act. She also submitted that the department has misconstrued the provisions and arbitrarily denied petitioner's benefit. She submitted that the respondent department failed to consider the fact that the respondent No. 4 establishment – employer had regularly committed defaults in payment of provident fund and other contributions payable under the Act in respect of all employees and the default was not only in respect of the deceased employee. 6. In reply, the learned advocate for the respondent department relied on the details mentioned in the affidavit and reiterated the contents of paragraph Nos. 5 and 6 of the affidavit. He submitted that according to the employer, the workman had remained absent and he was not paid wages for the period from July 2002 to December 2004 and that therefore, the petitioner, widow/legal representative of the deceased employee is not entitled for the benefit under the Scheme. 7. I have heard submissions by learned counsel for the petitioner and the respondent department and I have also considered the material on record. 8. Most of the facts involved in this case are not in dispute. So far as the allegation that the workman did not report for duty during the aforesaid period is concerned, Mrs. Pahwa, learned advocate for the petitioner, submitted that actually, the deceased employee was suffering from illness and he had proceeded on sick leave during major part of the period in question and that therefore, it is not correct to say that he was absent from duty. 9. Pahwa, learned advocate for the petitioner, submitted that actually, the deceased employee was suffering from illness and he had proceeded on sick leave during major part of the period in question and that therefore, it is not correct to say that he was absent from duty. 9. From the impugned decision of the respondent (which is found at page No. 12 of the petition), it appears that the respondent authorities have not considered the said fact and have mechanically accepted the version of the employer that the workman did not report for duty during July 2002 to December 2004 and that therefore, the wages were not paid to the said employee. Consequently, the impugned order is not only a non-speaking order, but it is passed without application of mind to the relevant facts and by ignoring the detailed explanation dated 5.9.2005 submitted by the union on behalf of present petitioner wherein it was specifically mentioned that the employer company had committed default and delay in payment of all contributions under the Act in respect of all employees of the company and that therefore, the rejection of the claim of the petitioner was not justified on the ground that the contribution in respect of the deceased employee was not paid during the said period. 10. It is pertinent to note that at anytime, membership of the deceased employee so far as the Scheme is concerned, was not cancelled/discontinued by the respondent department. 10.1 It is not even the case of the respondent department that the membership of the deceased employee was cancelled/discontinued from particular period/date. 10.2 When the membership of the deceased employee was not discontinued/cancelled on any ground, at any point of time, the respondent's action of denying the benefit to the widow/legal representative of the deceased employee is unjustified. 11. Further, when the provisions under the Act and the Scheme are taken into account, it emerges that even otherwise, the stand of the respondent department is unjustified. 11.1 At this stage, it is relevant to take into account provision of Section 6(C) of the Act, which reads thus:- “6C. Employees' Deposit-linked Insurance Scheme - (1) The Central Government may, by notification in the Official Gazette, frame a scheme to be called the Employees' Deposit-linked Insurance Scheme for the purpose of providing life insurance benefits to the employees of any establishment or class of establishments to which this Act applies. Employees' Deposit-linked Insurance Scheme - (1) The Central Government may, by notification in the Official Gazette, frame a scheme to be called the Employees' Deposit-linked Insurance Scheme for the purpose of providing life insurance benefits to the employees of any establishment or class of establishments to which this Act applies. (2) There shall be established, as soon as may be after the framing of Insurance Scheme, a Deposit-linked Insurance Fund into which shall be paid by the employer from time to time in respect of every such employee in relation to whom he is the employer, such amount, not being more than one per cent of the aggregate of the basic wages, dearness allowance and retaining allowance if any for the time being payable in relation to such employee as the Central Government may, by notification in the Official Gazette, specify. Explanation. - For the purposes of this sub-section, the expressions "dearness allowance" and "retaining allowance" have the same meanings as in section 6. (3) *** (4) (a) The employer shall pay into the Insurance Fund such further sums of money, not exceeding one-fourth of the contribution which he is required to make under sub-section 2, as the Central Government may, from time to time, determine to meet all the expenses in connection with the administration of the Insurance Scheme other than the expenses towards the cost of any benefits provided by or under that Scheme.” (Emphasis supplied) 11.2 On plain reading of the said provision, it becomes clear that the obligation to pay contribution in the insurance fund is of the employer. The said provision, does not contemplate or postulate that the contribution to the insurance fund has to be made by the employee as well. 11.3 Under the circumstances, the question of deduction from the wages of the employees and payment of his contribution alongwith corresponding contribution by the employer does not arise so far as the Scheme is concerned. 11.4 The said aspects become clear from sub-section (2) of Section 6C. Besides this, it is also relevant to take into account the provision under the Scheme of 1976. 11.4 The said aspects become clear from sub-section (2) of Section 6C. Besides this, it is also relevant to take into account the provision under the Scheme of 1976. The term “assurance benefit” is defined under Section 2(b) of the Scheme which reads thus:- “2(b) “assurance benefit” means a payment linked to the average Balance in the Provident Fund Account of an employee, payable to a person belonging to his family or otherwise entitled to it in the event of death of the employee while being a member of the Fund.” 11.5 The said paragraph 7 of the Scheme read with Section 6C of the Act clarifies that the contribution is to be made at the rate of 1% of the wages “payable” (and not actually paid to the employee) and the said provision does not contemplate contribution by the employee. Under the circumstance, the department's stand that since the employer had not deposited the contribution, the petitioner is not entitled for benefit under the Scheme, is untenable. 11.6 Merely because employer commits delay and/or default in payment of contribution, the benefit payable to the heirs/legal representative of the employee can not be denied. The Scheme neither authorizes such refusal nor provides for and/or justifies such refusal. 11.7 Further, if the employer does not pay the contribution, then, for such default of the employer, employee and heir/legal representatives of the employees i.e. the beneficiaries of the Scheme should not be and cannot be penalized. The obligation to pay contribution rests on the employer and for the employer's failure, the benefits cannot be denied to the employees/his heir or legal representatives. 11.8 On this count, it is relevant to note that on plain reading of paragraph No. 5 of the affidavit, it becomes clear that the department has assumed that the deceased employee remained absent from duty during the aforesaid period. Further, any evidence with regard to the deceased employee's alleged absence or as to whether he was on sick leave and was not called for and was not examined by the department. 11.9 Without examining such evidence, the department could not and ought not have assumed that the workman was absent during the period in question. 12. Besides the said provision, it is also relevant to take into account the provision under paragraph 9 of the Scheme. The said paragraph 9 of the Scheme reads thus:- “9. 11.9 Without examining such evidence, the department could not and ought not have assumed that the workman was absent during the period in question. 12. Besides the said provision, it is also relevant to take into account the provision under paragraph 9 of the Scheme. The said paragraph 9 of the Scheme reads thus:- “9. Employer's contribution not to be deducted from the wages of the employees.- Notwithstanding any contract to the contrary, the employer shall not be entitled to deduct the employer's contribution payable by him under this Scheme from the wages of the employees or to recover it from them in any other manner.” 12.1 The aforesaid provision, makes it clear that the employer is not entitled to deduct employee's contribution payable under the Scheme from the wages of the employees. 12.2 There is no provision under the Scheme which authorizes any deduction from the wages of the employees and/or for contribution by the employee from his wages, to the insurance fund. 12.3 The provision with regard to the payment of employee's benefit is found under paragraph 23 and 24 which prescribes, inter-alia, that who will be entitled to receive the amount and the mode of payment of insurance benefit. 12.4 The provision under paragraph 23 of the Scheme requires an employee to make nomination of the amount to be paid to such nominee or nominees. The said paragraph 23 also prescribes the relations of the employee who will not be entitled for benefit namely, (i) son who have attained majority; (b) sons of a deceased son who have attained majority; (c) married daughters whose husbands are alive; and (d) married daughters of a deceased son whose husbands respondent alive. The petitioner herein does not fall in the category which is ousted from payment of benefits. 12.5 From above quoted provision, it becomes clear that the respondent Provident Fund Organization has passed impugned order without application of mind and without having regard to the relevant provisions and proper construction. The assumption that the deceased employee was absent from duty is also unjustified since the said assumption is made without examining any evidence. Further, the fact that the employer had allegedly committed default in respect of all employees of the company for long period is also not taken into account by the respondent department. Likewise, detailed submissions filed by the union vide communication dated 5.9.2005 is also not considered. Further, the fact that the employer had allegedly committed default in respect of all employees of the company for long period is also not taken into account by the respondent department. Likewise, detailed submissions filed by the union vide communication dated 5.9.2005 is also not considered. 13. Under the circumstances, the case requires reconsideration by the competent authority and the authority is obliged to pass appropriate fresh order with regard to the petitioner's claim in light of the details obtaining on record of this petition and relevant provisions. 14. Therefore, following order is passed:- (a) The impugned order dated 21.9.2005 are set aside and the matter is remanded to the competent authority for reconsideration. (b) The competent authority will grant opportunity of hearing to the petitioner's heir/legal representative and after taking into account the relevant material and relevant provisions, passed appropriate fresh reasoned order with regard to petitioner's claim in accordance with law and on merits without being influenced by impugned order. Above disconnection with regard to relevant provisions shall be taken into account. If on consideration of relevant aspects, the claim of applicant is found justified and tenable, then, the amount payable shall be quantified. (c) The said process will be completed by the authority as expeditiously as possible and not later than six weeks from the date of receipt of certified copy of this order. With aforesaid observations and directions, present petition is partly allowed. Rule is made absolute to the aforesaid extent.