Madhya Pradesh High Court
Raghunath vs Regional Provident Fund Commissioner ... on 19 February, 2002
Equivalent citations: [2002(94)FLR421], (2002)IIILLJ154MP, 2002(2)MPHT252
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
Heard the learned counsel for the parties.
Perused the record.
1. The grievance of the petitioner he has been wrongfully deprived of his benefits as per Annexure P-8 passed on 4-5-1998 by the Regional Provident Fund Commissioner, M.P., Bhopal. The application filed by the petitioner for release of the pensionary benefits was disallowed on the ground that total period of the service was less than 10 years. Thus, he was not entitled to the payment of pension.
2. The petitioner was employed as a Labourer in Gwalior Potteries (hereinafter referred to as employer) with effect from 31-1-1959. He continued in service till 1-12-1976. The petitioner alleges that services of the petitioner were illegally terminated by the employer. He filed a petition before the Labour Court which declared the termination as illegal and void as per order passed on 9-11-1989 (Annexure P-1). The Labour Court directed reinstatement along with 30% backwages. An appeal was preferred by the petitioner as well as by the employer before the Industrial Court. Compromise was entered into between the parties. Application dated 26-11-1994, Annexure P-2 was filed by the petitioner before the Industrial Court in Appeal No. 2214/M.P.I.R./89 in which it was mentioned that both the parties have compromised the matter instead of back wages he accepted Rs. 10,000/- for the same and both the parties have decided to withdraw their appeals. An order dated 26-11-1994 (Annexure P-3) was passed by the Industrial Court accepting the compromise and in lieu of backwages, a sum of Rs. 10,000/- was ordered to be acceptable as per the compromise between the parties. Both the appeals were dismissed by a common order.
3. Thereafter, petitioner was reinstated and ultimately he was superannuated on attaining the age of 58 years on 31-1-1998 (Annexure P-6) which was passed on 18-12-1997.
4. The petitioner however alleges that he had opted for employees pension and the option form was forwarded by the employer to the respondent No. 1 vide letter dated 10-4-1998 (Annexure P-7). This option form of the petitioner was rejected by the respondent No. 1 as per order dated 4-5-1998 (Annexure P- 8) which order is impugned in the present writ petition.
5. Petitioner submits that he had completed 39 years of service without break and as the compromise was filed, it cannot be treated that there was any break in service. The order Annexure P-8 passed by the respondent No. 1 is absolutely illegal and in oblivion of the legal position and the directions issued by the Labour Court as well as the Industrial Court. The respondent No. 1 made misinterpretation of the orders passed by the Courts below. Even otherwise, when an employee has rendered service of 39 years, the order of rejection of the option form on the ground that the employee had not rendered continuous service for 10 years is illegal, void, bad in law and in violation of Articles 14 and 16 of the Constitution of India.
6. The respondent No. 1 in its return contends that the petitioner has received the payment of provident fund amount without any objection. As regard to depositing the amount back and also the amount of contribution for the period of illegal termination the stand is that the petitioner never offered to deposit the amount. In case the petitioner applies to the respondent No. 1, the same may be decided according to provisions of law. It is further contended by the respondent No. 1 that the petitioner never offered to redeposit the amount back and never applied through his employer for pension, therefore, the petition is premature.
7. The respondent No. 2 in its return contends that in view of the compromise entered into between the parties, it has to be taken that past services were forfeited by the petitioner as he had accepted Rs. 10,000/- in lieu of 30% backwages. Thus, there was a break-in-service of the petitioner and he had not rendered the continuous service of ten years which is the minimum qualifying service which makes a person eligible for pension. There was no continuity of service rendered by the petitioner. No contribution could be deducted towards provident fund.
8. Learned counsel, Shri H.N. Upadhyaya, appearing for the petitioner submits that the action is illegal. The order, Annexure P-8 which has been passed on the ground that the petitioner had not rendered ten years service is contrary to facts and the legal position emanating from the orders passed by the Labour Court and the Industrial Court and the compromise entered into between the parties. It is further submitted that the petitioner is ready to make the payment of his contribution for the period in question and the amount required towards family pension. In support of his submissions, reliance has been placed on a Division Bench decision of this Court in the case of Kamla Bai w/o Late Gopal v. Secretary, Madhya Pradesh Electricity Board, Jabalpur and Ors., 1992 MPLJ 214.
9. Learned counsel, Shri A.K. Shrivastava, appearing for the respondent No. 2 contends that the order is proper as the compromise was entered into between the parties before the Industrial Court. In view of the compromise, past service could not be counted towards service benefits as the petitioner confined his claim to a sum of Rs. 10,000/-, as such, no extra financial burden could not be saddled on the respondent No. 2. In addition, it is submitted that the petitioner did not opt for the family pension as per requirement of scheme.
10. First question for consideration is whether services of the petitioner were less than ten years as held in Annexure P-8 while rejecting the option form of the petitioner for pensionary benefits.
11. Aperusal of the Labour Court order, Annexure P-1 clearly indicates that the removal of the petitioner was held to be illegal and he was directed to be reinstated. It was not at all the case of the employer that the employee was offered fresh employment in view of the compromise between the parties. It was clearly a case where reinstatement ipso facto was directed which was accepted by the employer. The word 'reinstatement' itself carries that past services have to be counted as continuous service. The employer on the basis of the compromise could not take a view that the petitioner did not render ten years continuous service for the benefits he sought for. The legal position is clear and the compromise in no manner even suggests that the past services rendered by the petitioner were to be forfeited or not to be treated as continuous service. There is no mention in the compromise with respect to the pensionary benefits. It cannot be said that the petitioner waived his past service by entering into compromise with the employer. Merely because he confined his claim to the backwages to the extent of Rs. 10,000/-, it cannot be said that the petitioner had forfeited his right in any manner whatsoever to forego his past services which he had rendered from the year 1959 till the date of his reinstatement.
12. Order (Annexure P-8), is contrary to the decision of the Labour Court (Annexure P-1) and the order passed by the Industrial Court (Annexure P-3) and also the factual and legal position emanating from the term 'reinstatement'. Thus, the order Annexure P-8 which is based only on the ground that the period of service is less than ten years, he has been held to be not entitled to the pensionary benefit is bad in law.
13. The respondent No. 1 in its return has categorically pointed out that "in case the petitioner applies to respondent No. 1 to redeposit amount, it may be decided according to provisions of law".
14. The documents on record shows that the option for pension scheme stand exercised by the petitioner which was also forwarded by the employer to the respondent No. 1 as per Annexure P-7 and rejection of the option form is not on the ground that the petitioner had failed to exercise the option but the ground on which it was rejected was that there is no continuous service of ten years which was the minimum requirement. Since the employer had forwarded the option form, it should have been examined in accordance with the provisions of the scheme by the respondent No. 1. Otherwise also there is a duty cast on the employer as per sub-para (3) of para 4 of the Employees' Family Pension Scheme, 1971 (hereinafter referred to as the Scheme, 1971) which is quoted below :--
"(3) It shall be the duty of every employer to get the option referred to in sub-paragraph (1) exercise by every member to whom the option is given within the time specified in sub-paragraph (2)."
Para 4-A of the Scheme, 1971 is also relevant. Sub-paragraph (3) of para 4-A also makes it a duly of every employer to get the option referred to in sub-paragraph (1) exercised by every member to whom the option is given within the time specified in sub-paragraph (2).
15. There is no averment by the respondent No. 2, the employer in the return that the petitioner was made aware to exercise the option in respect of the scheme in question.
16. Since the required option has been exercised by the petitioner and if he deposits the contribution which should have been re-deposited to avail the benefits of the scheme, it is directed that the respondent No. 1 shall consider the case of the petitioner as to achieve the purpose of the legislative intent enshrined under the Scheme of 1971 and the Employees' Pension Scheme, 1995 and take a decision in accordance with law.
17. The writ petition is allowed. The impugned order Annexure P-8 is quashed. The respondent No. 1 is directed to decide the application of the petitioner for pension, within a period of three months from the date of production of a certified copy of this order, in accordance with law.
18. Costs on parties.