Patna High Court
Ugra Chandra Mishra vs Union Of India (Uoi) And Ors. on 4 October, 2002
Equivalent citations: 2002(50)BLJR2323, (2003)ILLJ974PAT
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. Heard learned counsel for the parties. This writ petition has been preferred by a superannuated employee of the Nalanda Khadi Gramodyog Sangh for a declaration and appropriate directions to the respondent authorities that the petitioner is entitled to payment of pension under the Employees' Pension Scheme, 1995 (hereinafter referred to as, 1995 Scheme), framed under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act').
2. According to the writ petition, the petitioner was born on January 1, 1932, joined the services of respondent No. 3 in 1973, and superannuated w.e.f. February 7, 1997 on reaching the age of superannuation i. e. 65 years of age. It is further stated in the writ petition that the petitioner submitted his application dated January 24, 1999 (Annexure 3) in the prescribed proforma under the 1995 Scheme for release of the benefits thereunder. The petitioner complains before this Court that the same is not being granted to him. Hence this writ petition.
3. Before we go into the rival contentions of the parties, it would be useful to give a brief description of the schemes which are relevant for the adjudication of the dispute in the present case. The employees of respondent No. 3 have admittedly been covered by the Act and the petitioner was also a member of the scheme framed thereunder, namely, Employees' Provident Fund Scheme. The Scheme in substance means that the employee makes a contribution every month from his salary and the employer makes a matching contribution. The fund is managed by the Provident Fund Commissioner, and subject to the details of the provisions the same is payable to the employee after his superannuation. The Central Government in exercise of the powers conferred by Section 6-A of the Act made a scheme known as Employees' Family Pension Scheme, 1971 (hereinafter referred to as the 1971 Scheme). Subject to detailed consideration of the same, a member of the .Employees' Provident Fund under the Act can be a member of the 1971 Scheme for which he was required to submit his option in Form I within a period of six months of the first day of March 1971 provided the employee was not 59 years of age on the date of his option. The Scheme in substance means that after he opts for the same, the prescribed contribution shall be diverted from his provident fund to his family pension fund under the 1971 Scheme thereafter he or his heirs would be entitled to the benefits envisaged in the 1971 scheme. This Scheme was replaced by the aforesaid 1995 Scheme which was made in exercise of the powers conferred by Section 6-A of the Act. Subject to a detailed consideration of the same, no employee could become a member of this Scheme after attaining 58 years of age, nor could he be a member of this Scheme unless he was a member of the 1971 Scheme. The question for determination in the present writ petition is whether or not the petitioner exercised his option to be a member of the family pension scheme under the 1971 Scheme, and thereafter did he exercise his option for the Employees Pension Fund under the 1995 Scheme. It appears from the pleadings of the parties that the respondent authorities are under the impression that the petitioner never exercised the option and, therefore, he is not entitled to the benefits of the 1971 Scheme and the 1995 Scheme. Hence the writ petition at the instance of the petitioner.
4. Dr. Mayanand Jha, learned counsel for the petitioner, submits in support of the writ petition that the petitioner became a member of the 1971 Scheme automatically by virtue of being a member of the Employees Provident Fund under the Act. He next submits that the unamended paragraph of 6(c) of the 1995 Scheme did not contain the age bar. He also submits that he did exercise his option in terms of the 1995 Scheme. He submits in the same vein that the amendment to Para 2(1)(ix) of the 1995 Scheme was enforced w.e.f. February 22, 1999. He lastly submits that some of the benefits other than those accruing under the 1971 Scheme or 1995 Scheme have also been withheld.
5. Mr. Rama Shankar Pradhan, senior advocate, appearing for respondent No. 2 (The Regional Provident Fund Commissioner, Bihar, Patna), and Mr. Khurshid Alam for respondent No. 3 (Nalanda Zila Khadi Gramodyog Sangh), have made common cause and opposed the writ petition. He further submits that an employee who is a member of the Employees' Provident Fund under the Act must exercise his option to become a member of the 1971 Scheme which is not automatic. They submit that there is no evidence on record to show that the petitioner had exercised his option to be a member of 1971 Scheme before he attained 59 years of age. Equally there is no evidence on record to show that he exercised his option to be a member of the 1995 Scheme before he attained the age of 58 years. He lastly submits that the petitioner has withdrawn the entire benefits of provident fund under the Act and he is now trying to unsettle the settled matter.
6. I have perused the pleadings on record and considered the submissions of the learned counsel for the parties. It appears to me to be of paramount importance that an employee within the meaning of Section 2(e) of the Act and a member of the Employees' Provident Fund envisaged thereunder can also exercise his option to be a member of the 1971 Scheme. The employee is obliged to make a contribution per month in the Employees Provident Fund and the employer is equally obliged to make a matching contribution. By and large this is conceived as a security for the employee and his family after he ceases to be in employment in cases of non-pensionable employment. In view of the powers conferred by Section 6-A of the Act, the Central Government has been making efforts to improve the post-retirement benefits admissible to employees covered by the Act. With that end in view, the Central Government made the 1971 Scheme in exercise of the powers to be conferred by Section 6-A of the Act. Paragraph 3 reads as follows:
"3. Membership of the Family Pension Fund-Subject to Sub-paragraph (3) of para 1, this Scheme shall apply to every employee.
(a) who becomes a member of the Employees' Provident Fund or of provident funds of factories and other establishments exempted under Section 17 of the Act on or after March 1, 1971:
(b) who has been a member of the Employees Provident Fund or of Provident Fund of factories and establishments exempted under Section 17 of the Act immediately before the commencement of this Scheme and opts to exercise his option under para 4.
Provided that an employee who attains the age of more than 59 years on the date on which he would, but for this proviso, have become eligible for membership or have been required to become a member of this Scheme shall not be eligible for membership under this Scheme."
Sub-paragraphs (1) and (2) of Para 4 are also relevant in the present context and are set out hereinbelow for the facility of quick reference:
"4. Option of joining this Scheme.-(1) Every employee who is a member of Employees Provident Fund or of provident funds of factories and other establishments, exempted under Section 17 of the Act, immediately before the commencement of this Scheme, shall have the option to join this Scheme.
(2) The option referred to in Sub-paragraph (1) shall be exercised in Form 1 within a period of six months from the 1st day of March, 1971."
Clause (ii) of Form 1 is also relevant in the present context and is set out hereinbelow for the facility of quick reference:
"(ii) Undertake to pay the contributions which would have been diverted from the provident fund to family pension fund under, Sub-paragraph (1) of para 9 for past period with effect from March 1, 1971, together with interest at the rates specified in Sub-paragraph (2) of para 22 of the scheme."
7. It thus appears to me that Substance of the aforesaid provisions relevant in the present context are as follows:
(i) Every member of the Employees Provident Fund is entitled to become a member of the 1971 Scheme.
(ii) In order to become a member of the 1971 Scheme and be entitled to the benefits thereunder, the employee shall have to exercise option under para 4. It is not automatic.
(iii) The employee should not exceed 59 years of age on the date he exercises his option.
(iv) The option has to be exercised in Form I within a period of six months from the first day of March 1971 which, in the present case, would mean that the petitioner should have exercised the option within a period of six months from the date of his joining services in 1973. This is advisedly so because the option entails a contribution to the Family Pension Scheme of 1971 which is drawn from his employees provident fund, as is manifest from Form I in which the option had to be exercised. If he does not exercise the option, then the contribution to the family pension scheme shall not be drawn from the employees provident fund.
(v) It is manifest from Clause (ii) of Form I read with para. 4 (ii), exercising to be a member of the 1971 Scheme automatically entails payment of a certain contribution to the 1971 Scheme drawn from the employees provident fund scheme.
8. I have no hesitation in rejecting the first contention advanced by learned counsel for the petitioner that he became a member of 1971 Scheme by automatic operation of law by virtue of being a member of the Employees Provident Fund. The contention is based on a misreading of opening words of para 3 of the 1971 Scheme which stated that "....this scheme shall apply to every employee......" which in my view that the 1971 Scheme is available to all members of the employees provident fund, provided the employee was not 59 years of age on the date he exercised the option in Form I, which could not be beyond six months of the date of commencement of the employment. The obligation to exercise option has advisedly been incorporated because membership of the 1971 Scheme entails a regular contribution in the manner indicated therein, particularly Clause (ii) of Form I read with para 4(2) of the 1971 Scheme. I, therefore, reach the conclusion that the membership of the employees provident fund under the Act does not by itself make such an employee a member of 1971 Scheme, until and unless he has exercised his option in terms of para 4 read with Form I thereunder and was not beyond 59 years of age within a period of six months from the date of commencement of employment.
9. The aforesaid provisions of law have to be applied to the facts and circumstances of the present case. In other words, the question which now survives for consideration is whether or not the petitioner exercised his option in terms of para 3 and para 4 of the 1971 Scheme. Learned counsel for the petitioner asserts that the petitioner did exercise the option. He relies on paragraph 11 of the writ petition which is set out nereinbelow for the facility of quick reference:
"11. That, under the Employees' Provident Fund Scheme, the employees who were subscribers to the E.P.F. were to give option whether they wanted pension, and the petitioner opted for the same."
in my view, the factual foundation laid by the petitioner is inadequate. This is a vague and inadequate statement to lay a claim that the petitioner had opted for the 1971 Scheme. He was neither stated as to on which date he had exercised his option nor has he annexed a copy of the same, nor there is evidence to show that the requisite contribution in terms of clause (ii) of Form I read with para 4(2) of the 1971 Scheme has been deducted from the petitioner's employees provident fund and credited to the 1971 Scheme. I, therefore, conclude that the petitioner did not exercise his option in terms of the proviso to para 3 read with para 4 and Form I thereunder. It, therefore, follows as a matter of natural corollary that the petitioner was never a member of the 1995 Scheme, because para 6 of the 1995 Scheme provides that this scheme shall apply to every employee who has been a member of the ceased 1971 Scheme before the commencement of the 1995 Scheme w.e.f, November 16, 1995. In view of my conclusion hereinabove that the petitioner was not a member of the 1971 Scheme, it automatically follows that the petitioner could not have been a member of 1995 Scheme. There is one more aspect of this matter. The petitioner has admittedly withdrawn the entire proceeds of the Employees Provident Fund under the Act. The petitioner cannot now be permitted to reopen the entire matter and unsettle the settled affairs. The first part of the petitioner's case is, therefore, rejected.
10. This takes me on to the second part of the petitioner's grievance which is stated in paragraph 12 of the writ petition and is set out hereinbelow for the facility of quick reference:
" 12. That the petitioner retired on February 7, 1997 but his E.P.F. payment was delayed, however, the same has been paid partially. The deductions made for the period 1981, 1982 and 1983 were not paid besides that interest on E.P.F. for the period February 8, 1997 to January 10, 1998 has not been paid. The payment of E.P.F. was made on January 10, 1998 but interest has been paid only upto February 7, 1997."
An explanation to the same is stated in paragraph 4 of the counter-affidavit of respondent No. 3, to which the petitioner objects on the ground that the grievance raised by the petitioner in the aforesaid paragraph 12 of the writ petition has not been specifically answered. In his submission, the contents of paragraph 4 of the counter-affidavit of respondent No. 3 are of a general nature and do not answer the specific grievance of the petitioner. In that view of the matter, I hereby direct the petitioner to submit an appropriate representation before respondent No. 3 (The Secretary, Nalanda Zila Khadi Gramodyog Sangh, Kagaji Mohalla, Bihar Sharif Nalanda), who shall examine the details of the grievance set out in paragraph 12 of the writ petition, and pay the lawful and admitted dues within a period of two months of the date of submission of the representation, and shall reject the balance by a reasoned order. It goes without saying that the petitioner may submit an appropriate representation before respondent No. 2 (The Regional Provident Fund Commissioner, Bihar, Patna) in case the order of respondent No. 3 necessitates the same.
11. In the result, this writ petition is dismissed in so far as the first part of the petitioner's grievance is concerned, but is allowed with respect to the second part of the grievance in the manner indicated hereinabove.