Madhya Pradesh High Court
Hemant Dhere vs Employees Provident Fund Organisation on 8 June, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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THE HIGH COURT OF MADHYA PRADESH
WP No.3841/2021
Hemant Dhere vs. The Employees Provident Fund Organization
& Ors.
Heard through Video Conferencing
Gwalior, Dated : 08.06.2021
Shri D.P. Singh, Counsel for the petitioner.
Shri R.K. Goyal, Counsel for the respondents.
This petition under Article 226 of the Constitution of India has been filed against the order dated 21.1.2021 passed by respondent No.2 by which the order revising the pension as well as the revised PPO has been cancelled and the petitioner has been directed to refund the excess amount.
It is not out of place to mention here that the Assistant Provident Fund Commissioner has also been impleaded in his personal capacity as respondent No.3.
It is the case of the petitioner that the petitioner was the employee of Gwalior Sahakari Dugdh Sangh Maryadit, Gwalior (respondent No.4). The petitioner had opted the scheme of EPF, 1995 and employee's contribution was being deducted and the employee subscription was being deposited by the employer. The petitioner stood retired in the month of April, 2013 and PPO was also issued. Thereafter, the petitioner made a representation for grant of higher pension under the Scheme of EPF, 1995 and on the basis of same, the Manager (Adm.) issued letter dated 8.9.2017 asking for option under the format. Accordingly, on 11.7.2017 the petitioner submitted his 2 THE HIGH COURT OF MADHYA PRADESH WP No.3841/2021 Hemant Dhere vs. The Employees Provident Fund Organization & Ors.
option. Since no decision was taken on the option of the petitioner, therefore, the petitioner along with other similarly situated persons preferred Writ Petition before this Court and direction was given to the respondents for extending the benefit on the basis of gazette notification dated 25th April, 2016. After completing the formalities, the revised PPO was issued granting the benefit of higher pension.
Thereafter, the respondents No.2/3 issued notice dated 23.12.2020 with regard to the eligibility for higher pension and sought an explanation within 10 days. The petitioner received notice on 23.12.2020 and submitted its objection on 8.1.2021. Thereafter, on 13.1.2021 another notice was issued, thereby extending the time to file the objection till 22-1-2021, which was received by the petitioner on 16.1.2021. Although the petitioner had already filed his objection but before expiry of period granted by the respondent No.3 in its show cause notice dated 13.1.2021, the respondent No.3 passed the impugned order on 21.1.2021 itself. Thus it is clear that issuance of show cause notice was nothing but it was a mere paper formality and for no reason the order was passed on 21.1.2021, whereas the petitioner had every right to file the supplementary reply or to appear before the respondents No.2 and 3 for his personal hearing on 22.1.2021.
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THE HIGH COURT OF MADHYA PRADESH WP No.3841/2021 Hemant Dhere vs. The Employees Provident Fund Organization & Ors.
This Court, by order dated 15.3.2021 had directed the respondents to produce the record.
It is submitted by the counsel for the respondents that the record is available.
It is submitted by Shri R.K. Goyal, counsel for the respondents that it is true that the second notice dated 13.1.2021 was issued to the petitioner for filing his reply on or before 22.1.2021, but as the reply of the petitioner was already received prior to the expiry of the date mentioned in the notice, therefore, the respondent No.2/3 without waiting for the expiry of period given in show cause notice, passed the impugned order on 21.1.2021. It is submitted that the subject matter in question is already sub judice before the Supreme Court.
Heard the learned counsel for the parties.
Issuance of a notice is not a mere formality. Notice dated 13.1.2021 reads as under:
vkids }kjk mijksDr nLrkost@tkudkjh fnukad 22-01- 2021 rd dk;kZy; esa Mkd@Lo;a }kjk izLrqr djus es foQyrk dh n'kk esa dk;kZy; }kjk vU; dksbZ volj u iznku djrs gq, ;g eku fy;k tk,xk fd vkids }kjk u rks ,slk dksbZ vkosnu fd;k x;k Fkk u gh dk;kZy; }kjk vkidks iSjk 26¼6½ ds varxZr fu/kkZfjr osru lhek ls vf/kd va'knku tek djokus dh Lohd`fr iznku dh xbZ FkhA Thus, it is clear that the petitioner was granted time upto 22.1.2021 to put forward his case either through post or by appearing personally. Under these circumstances, it is clear that the petitioner 4 THE HIGH COURT OF MADHYA PRADESH WP No.3841/2021 Hemant Dhere vs. The Employees Provident Fund Organization & Ors.
had full opportunity to file his supplementary reply/documents dated 22.1.2021. It is submitted by the counsel for the petitioner that the petitioner was also inclined to avail the opportunity of personal hearing but that has been denied by the respondents by passing a final order one day prior to the expiry of the date mentioned in the show cause notice dated 13.1.2021. The manner in which the impugned order has been passed clearly shows the predetermined mind of the respondent No.2/3.
Be that whatever it may.
One thing is clear that when the respondent No.2/3 had given time to the petitioner till 22.1.2021 to put forward his claim/objection either through post or by appearing personally, then he should not have passed any order prior to expiry of that period. Justice must not only be done but it must also seen to be done.
In the present case, the respondent No.2/3 has given a complete go-bye to the principles of natural justice.
So far as the contention of the respondents that the subject matter of the controversy is pending sub judice before the Supreme Court is concerned, it is suffice to mention here that this Court has not considered the merits of the case. The impugned order dated 21.1.2021 is being set aside on the ground of violation of natural justice. On one hand, the stand of the respondents is that the subject 5 THE HIGH COURT OF MADHYA PRADESH WP No.3841/2021 Hemant Dhere vs. The Employees Provident Fund Organization & Ors.
matter is pending sub judice, therefore, this Court should not decide the controversy and on the other hand, the respondents themselves are passing orders. It is for the respondents to consider their own stand.
Under these circumstances, this Court is left with no other option but to quash the order dated 21.1.2021 passed by the respondent No.2 in Case No.EPF/RO/MP/GWL/Pension/PPO/Higher Pension/25852 with cost of Rs.5,000/- to be paid by the respondent No.3 personally. The said cost shall not be reimbursed to the respondent No.3 by the Department. The cost be deposited in the account of the petitioner within a period of 15 days from today.
The matter is remanded back to the respondent No.2 to take a final decision in the matter after giving opportunity of personal hearing to the petitioner as well as by taking into consideration that the subject matter of the case is already sub judice before the Supreme Court.
With aforesaid observations, the petition is finally disposed of.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2021.06.11 10:27:15 +05'30'