Rajasthan High Court - Jodhpur
Smt. Surendra Kaur. vs . State Of Rajasthan & Ors. on 18 March, 2015
Author: Sandeep Mehta
Bench: Sandeep Mehta
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S.B.CIVIL WRIT PETITION NO.7059/2010
Smt. Surendra Kaur. Vs. State of Rajasthan & Ors.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors.
Date of order : 18.3.2015 HON'BLE MR.JUSTICE SANDEEP MEHTA Mr.VK Agarwal, for the petitioner.
Mr.KD Singh, for the respondents.
Reportable ...
1. Heard learned counsel for the parties.
2. Facts in brief are that the petitioner's husband Batan Singh was appointed as a Pump Driver on 27.1.1966 in the Irrigation Department of the Government of Rajasthan on work charge basis. He was made semi permanent on 18.11.1970. His services were regularized and he was made permanent on 3.7.1979.
3. Just before Batan Singh was about to retire, he was instructed to submit an option form for claiming the benefits of either the pension or the C.P.F. scheme as per his choice. He filled and submitted the form, opting for the pension scheme which option was accepted on 15.4.1981. Batan Singh attained the superannuation age 2 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. on 31.8.1981 and was sanctioned provisional pension w.e.f. 1.9.1981. However, on 5.7.1985 vide order Annex.4, the provisional pension being paid to Batan Singh was suddenly stopped on the ground that the C.P.F. deduction had been made from his salary for less than 10 years and thus, he was not entitled to the benefits of the pension scheme. Sh. Batan Singh passed away on 27.7.1988.
4. The petitioner, being the widow of Batan Singh, submitted a representation to the departmental authorities for being paid the pensionary benefits upon which she was informed by the Principal Secretary (Administration), I.G.N.P. by a letter dated 4.3.2009 Annex.10 that the pension as prayed in her representation was not admissible because the deduction towards C.P.F. had not been made from the employee's salary for the requisite minimum ten years period. It is averred in the writ petition that as Sh. Batan Singh had rendered more than 15 years of service, he was entitled to avail the benefits of the pension scheme because as per the Pension Rules, the entitlement of an employee to claim pension ripens on completion of ten years of service.
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S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors.
5. As the request made by the petitioner to the respondent authorities to grant her, the pensionary benefits was turned down, she has approached this Court by way of the instant writ petition assailing the legality and propriety of the communication Annex.10 dated 4.3.2009 and for directing the respondent authorities to sanction full pension w.e.f. 1.9.1981 to the petitioner's husband till his death and thereafter, family pension to the petitioner and also for the interest generated on the accrued amount.
6. Reply to the writ petition has been filed by the respondents with the assertion that the writ petition is liable to be dismissed for delay and laches. It is also averred in the reply that as the requisite deduction from Batan Singh's salary towards C.P.F. contribution was not made for the mandatory period of ten years so as to make him eligible for pension as required by the Rules, he was not entitled to receive pension as his entire service period could not be counted as pensionable service. It is further averred in the reply that though, initially provisional pension was sanctioned and paid to Batan Singh but thereafter, he was communicated a letter dated 24.1.1986 informing that the requisite contribution towards the C.P.F. account was made by him 4 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. for less than 10 years and as such, pensionary benefits were not admissible to him and his family members. By the letter dated 24.1.1986, the employee was further communicated that he had been paid provisional pension to the tune of Rs.5,124/- between the period 9/81 to 2/85 without entitlement and thus, he was directed to reimburse a sum of Rs.3,746/- to the department from his gratuity. On the strength of these averments, the respondents have prayed for the dismissal of the writ petition.
7. It is relevant to note here that the pleadings as well as the documents placed on record are absolutely silent as to the reason of non-deduction of the C.P.F. contribution from the salary of the employee for the requisite period of ten years. The cause of non-deduction definitely is not attributed to the employee. It is also not averred in the reply that the deduction made from the employee's salary towards the C.P.F. was paid to him after his retirement. The order Annex.4 dated 5.7.1985 is also silent in this regard.
8. Learned counsel for the petitioner contended that the petitioner is an illiterate lady. She made oral and written requests to the respondent authorities for sanctioning pension. However, the respondent authorities 5 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. did not pay any heed to the request made by the petitioner on which she submitted a representation to the Principal Secretary (Administration) whereupon the reply dated 4.3.2009 (Annex.10) was received to the effect that the pensionary benefits were not admissible to her because the deduction towards C.P.F. contribution had not been effected from her husband's salary for the required period of ten years. He submitted that the service of a government employee becomes pensionable in 10 years. Once the employee becomes a member of the pension fund, the burden of effecting C.P.F. deductions is upon the concerned departmental officers and such action is not dependent on the volition of the employee. It is the mandatory and statutory duty of the employer to deduct C.P.F. contribution from the employee's salary before disbursement. He, therefore, contended that the employee cannot be denied pension on account of employer's failure to deduct the C.P.F. contribution for the requisite period. He referred to Para 5 of the reply and contended that it is the admitted case of the respondents that the service tenure of the petitioner's husband was 15 years 10 months & 25 days and thus, his service was pensionable as per the Pension Rules. He urged that the employer was at fault in not 6 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. making the deduction towards the C.P.F. for the minimum required period and the attempt to shift the burden of non-contribution on the employee for depriving him of pensionary benefits, is totally unreasonable, unjust and arbitrary. He placed reliance on the decision rendered by the Hon'ble Apex Court in the case of S.K. Mastan Bee vs. General Manager, South Central Railway and another reported in (2003) 1 SCC 184 and urged that in the said case, the Supreme Court held that a petition filed seeking benefits of pension was maintainable despite delay, considering the fact that the petitioner therein was an illiterate widow with meager resources and had been deprived by the Railways of family pension. He further referred to Rule 14 of the Pension Rules, 1996 and particularly, the Government decision no.4 taken in reference to the said provision. He emphasized on the decision no.4 of the State Government which reads as below :-
"(4) In the case of Government servants who were required to contribute under Contributory Provident Fund Rules as applicable to them prior to their absorption but who did not contribute during any period or spell after coming into force of the respective relevant Work Charged Employees Contributory Provident Fund Rules for one reason or another, they may be allowed to contribute for that 7 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors.
period so that any intervening period may also be counted for pension."
9. He contended that if at all and for whatever reason the C.P.F. contribution was not deducted from Batan Singh's salary for a certain intervening spell so as to complete the period of 10 years (required for the employee to become entitled to the benefits of the pension scheme), such deduction was permissible in a consolidated manner at any later stage in view of the aforesaid Government decision so that the intervening spell during which the C.P.F. deduction was not made could be regularized so as to fill in the void. Thus, he urged that the writ petition deserves to be accepted and the respondent authorities be directed to release all pensionary benefits to the petitioner right from the date of her husband's retirement.
10. Per contra, learned counsel for the respondents vehemently opposed the submissions advanced by the petitioner's counsel. He urged that the writ petition is not maintainable as the same was filed after an inordinate delay of 29 years. He submitted that though the service tenure of the employee exceeded 15 years and his service had become pensionable but since the contribution towards C.P.F. was made only between May, 8 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. 1971 to November, 1975, the entire service period of the petitioner's husband could not be counted for pensionary benefits. He submitted that for an employee to be entitled to pensionary benefits, 10 years of service with full contribution in C.P.F. account is essential. As admittedly, in the case at hand, the C.P.F. contribution was not made by the petitioner's husband for the full period of 10 years, she is not entitled for the relief claimed for in the writ petition. He, however, candidly conceded that the duty of making deductions from the employee's salary towards C.P.F. contribution is that of the employer.
11. Heard and considered the arguments advanced at the bar and perused the material available on record.
12. The employee Shri Batan Singh superannuated on 31.8.1981. Before his superannuation, he was asked to fill up an option form to exercise a choice to claim benefits of either the pension or the C.P.F. scheme post retirement. The employee submitted the option form choosing the pension scheme over the C.P.F. scheme. The authority concerned could have rejected the claim at that very point of time intimating the employee that deduction towards C.P.F. had not been made from his salary for the requisite minimum period of ten years and, 9 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. therefore, he was not entitled to opt for the pension scheme. The option form was accepted despite the deficit deduction towards the C.P.F. and the employee was also paid provisional pension for almost four years. It cannot be gainsaid that the duty to deduct C.P.F. from the employee's salary, is that of the employer. Therefore, the stance of the respondents that the full service period of the employee could not be counted for pensionary benefits because C.P.F. contribution was not made by the employee for the minimum requisite 10 years is prima- facie untenable. Once, the option form was accepted and the P.P.O. issued to the employee, the employer was estopped from retracting its stand and withdrawing the benefits of the pension scheme already extended to the employee. It is also relevant to state here that neither in the order Annex.4 dated 5.7.1985 nor in the reply filed by the respondents, is it pleaded that the C.P.F. deduction made from the employee's salary between the year 1971 to 1975 was refunded to him at any stage.
13. Thus, the situation can easily be redeemed in favour of the employee by the above quoted Government decision no.4 taken in furtherance of Rule 14 of the Pension Rules. The decision makes it clear that even in such cases when the work charge Government servants, 10 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. who were required to contribute under Contributory Provident Fund Rules as applicable to them prior to their absorption but who did not contribute during any period or spell after coming into force of the Work Charged Employees Contributory Provident Fund Rules for one reason or another, they may be allowed to contribute for that period so that any intervening period can also be counted for pension.
14. Pension Rules are benevolent legislation and are to be given liberal interpretation. Giving restrictive interpretation to such legislation would amount to doing violence with the legislation itself. Whenever a question of the interpretation of such legislation arises, the conclusion should be aimed at giving benefit to the employee and not to deprive him of the same. The stand of the respondents is obviously arbitrary and illegal for two reasons, firstly the duty to deduct the amount of C.P.F. before disbursing the monthly salary to the employee was on the departmental officials and is being shifted on the employee without any basis. Furthermore, if for any reason, the contribution was not deducted during a spell of the employee's service, as claimed in the reply, then the employee should have been asked to deposit the remaining C.P.F. dues so as to regularize the 11 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. intervening period during which the deduction was not made. The authorities as a matter of fact, sanctioned provisional pension to the employee upon his retirement and thus, he had no occasion or opportunity to make an effort to regularize the missing period during which the C.P.F. contribution was not deducted from his salary. As noticed above, the exercise can even be conducted now in view of the above quoted Government decision no.4. The Hon'ble Apex Court in the case of S.K. Mastan Bee (supra) rejected the objection of delay raised in a claim of pension observing that the petitioner therein was an illiterate widow and had been deprived of family pension and held that the writ petition was maintainable despite delay. The same is the situation in the case at hand. The Hon'ble Apex Court held that the very denial of family pension amounted to violation of fundamental right guaranteed under Article 21 of the Constitution of India. In this background, this Court is of the opinion that the objection of delay raised by the State Government is not tenable in light of the ratio of above judgment. Otherwise also, the objection of delay cannot be utilized to throw out the petitioner's claim because the fault was of the employer in not deducting the C.P.F. amount from the employees' salary for the requisite period. The attempt 12 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors. made by the respondents in trying to shift the burden of non-deduction of the C.P.F. amount is well described by the latin maxim "injuria non-excusat injuriam" i.e. a wrong does not excuse a wrong.
15. As a result of the aforesaid discussion, the instant writ petition deserves to be and is hereby allowed in the following terms :-
(i) The amount of contribution required to be made in the employee's C.P.F. account to fill up the missing period during which such amount was not deducted from the employee's salary shall be calculated so as to complete the ten years period required to make his service pensionable.
(ii) Full pension accruing to the employee till his death shall be assessed. From the said amount, the amount of provisional pension already paid to the employee shall be deducted.
(iii) The family pension accruing to the petitioner widow till date shall be calculated with all applicable revisions.
(iv) On the total due amount, 9% interest shall be applied.
(v) The amounts generated as per directions no.(ii),
(iii) and (iv) shall be added and from the resulting 13 S.B.CIVIL WRIT PETITION NO.7059/2010 Smt. Surendra Kaur. Vs. State of Rajasthan & Ors.
total, the amount calculated as per point no.(i) shall be deducted and adjusted towards the missing C.P.F. dues in conformity with the Government decision no.4 and the remaining amount shall be paid to the petitioner.
(vi) Family pension shall be regularly paid to the petitioner as per the Pension Rules, hence forth.
16. No order as to costs.
(SANDEEP MEHTA), J.
/S.Phophaliya/