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1. The present petition under Article 226 of the Constitution of India has been filed by the petitioner impugning the order dated 16.08.2004 passed by the respondent no.3/Commissioner, Coal Mines Provident Fund, whereby he had been informed that he had qualified to become a member of the Coal Mines Provident Fund (hereinafter referred to as "CMPF") only w.e.f. January 1969. The petitioner also seeks a direction to the respondent no.2/Board of Trustees, CMPF to release the payment towards his provident fund contribution from 20.06.1968 to 15.06.1969.

3. It is the petitioner's case that while he was working with the NCS, respondent no.3/Commissioner, CMPF who was enjoined with the statutory duty to ensure compliance of the provisions of the CMPF Act, on learning that no contributions in respect of the petitioner had been received in his office, vide his letter dated 05.04.1971 directed the Manager of Union Angarpathra Colliery, P.O.Sijua, Distt. Dhanbad to deposit the requisite amounts and also give information regarding the date of the petitioner's appointment and termination alongwith reasons for termination.

8. In the light of the aforesaid facts, the petitioner by placing reliance on paragraph 55 of the CMPF Scheme, submits that once it was the statutory duty of the respondent nos.2 & 3 to ensure that his employer duly deposits the provident fund contributions with the Provident Fund Commissioner in a timely manner, which duty it failed to discharge by not taking any action against UCCL or BCCL except for sending reminders to them, the respondent no.2 is enjoined to pay him the due amount from its reserve account maintained as per paragraph 55 of the said Scheme, even if there was a default on the part of his employer to make the statutory deposits. The petitioner, thus, contends that merely because his employer was unable to provide him with the relevant documents and records and had perhaps not remitted the provident fund contributions to the respondent nos.2 & 3, he cannot be deprived of his rightful entitlement, especially when deductions at the statutory rate of 8% from his salary of Rs.600/- were made for the said purpose in accordance with CMPF Act and Scheme during the aforesaid period from 20.06.1968 to 15.06.1969.

17. Now coming to the question as to how the petitioner can be compensated in the light of the respondent's stand that the records for the period in question are not available. The petitioner relies on paragraph 55 of the CMPF Scheme to contend that in cases where the employer defaults to make the requisite deposit towards provident fund dues, the employee cannot be made to suffer and the employee is still entitled to receive his dues from the reserve account maintained by the respondent no.2. He states that paragraph 55 of the CMPF Scheme has been introduced only to cater to such contingencies where there is a default on the part of the employer to make the requisite deposits and, therefore, prays that the respondent no.2 be directed to pay his provident dues for the period from 20.06.1968 to 15.06.1969 from its reserve account.