Agarchand Bhansali And Ors vs Assistant Provident Fund Commissioner And Ors

,,

Dr. Pushpendra Singh Bhati, J",,

These special appeals have been preferred by the appellants/writ petitioners claiming, in sum and substance, the following reliefs:",,

“Therefore, the humble Appellant/Petitioner prayed to the Hon’ble Court that the impugned order dated 05.01.2018, may kindly be quashed and",,

set aside and writ petition filed by the petitioner appellant may kindly be allowed and further issued direction to the respondent to release the pension in,,

accordance with (Annx.19) perused with additional Affidavit of the petitioner and further para 12(3)C, of the Scheme of 1995 may kindly be declared",,

irrational and unconstitutional.,,

Any other appropriate order or direction which is just and proper in favour of the appellant/petitioner may kindly be allowed.â€​,,

For the purpose of the present adjudication, the necessary and indispensable facts are being taken from the lead case being Special Appeal",,

No.1345/2018.,,

The appellant/writ petitioner has preferred this appeal aggrieved by the order dated 05.01.2018 passed by the learned Single Judge in S.B. Civil Writ,,

Petition No.412/2002, whereby the appellant/ writ petitioner’s claim regarding calculation of his past service benefits under clause (b) of sub para",,

(5) of para 12 of the Scheme of 1995 based on the factor on account of time spent in service prior to 16.11.1995 has been declined.,,

The undisputed facts of the case are that the appellant/writ petitioner discharged his services as Deputy General Manager in M/s. Metallizing,,

Equipment Company, and while he joined the services on 01.01.1980, the appellant/writ petitioner stood superannuated on 01.12.1997.",,

The service of the appellant/ writ petitioner was covered under the provisions of Employees’ Provident Funds and Miscellaneous Provisions,,

Act, 1952, which was subsequently covered by the Employees Pension Scheme, 1995 brought into force in exercise of the powers conferred by",,

Section 6A of the Act of 1952.,,

The past service of the appellant/ writ petitioner, according to him, in terms of the Pension Scheme, was 15 years 10 months and 14 days, that was",,

from 01.01.1980 to 15.11.1995. The service rendered after the Pension Scheme coming into vogue was 2 years and 15 days from 16.11.1995 to,,

01.12.1997. The actual service of the appellant/writ petitioner was thus around 18 years.,,

As the pleaded facts would further reveal, the monthly pension of the appellant/ writ petitioner was to be computed as per clause (a) of sub para (5)",,

of para 12 of the Scheme of 1995 with the formula of pensionable salary x pensionable service with a minimum of Rs.335/- per month. Clause (b) of,,

sub para (5) of para 12 of the Scheme of 1995 required the appellant/ writ petitioner’s pension to be computed by multiplying his past service,,

factor with Rs.135/-.,,

The bone of contention between the parties in this case is very limited as the respondent claims that the monthly pension of the appellant/ writ,,

petitioner as per the formula of pensionable salary x pensionable service divided by 70, which is Rs.5000 x 2 divided by 70, and which works out to",,

Rs.142.85, but with a minimum of Rs.335/- per month in terms of clause (a) of sub para (5) of para 12 of the Scheme of 1995, the aggregate pension",,

would be Rs.171 + 335 = Rs.506/- per month.,,

Learned counsel for the appellant/ writ petitioner does not dispute that clause (a) of sub para (5) of para 12 would be pensionable salary x,,

pensionable service divided by 70 with a minimum of Rs.335/- per month, but argues for application of clause (b) of sub para (5) of para 12, whereby",,

the writ petitioner claims application of the multiplier of 135 x 7.056 i.e. Rs.952.56 per month, and his pension would be Rs.953 + 335 i.e. Rs.1288/-per",,

month.,,

Learned counsel for the appellant/writ petitioner submitted that the component of monthly pension of Rs.335/- as minimum pension is not disputed,",,

and the multiplier of 135 is also not disputed, but the whole dispute is with regard to how the past service should be counted.",,

Learned counsel for the appellant/ writ petitioner further submitted that the term ‘past service’ is defined under the Scheme of 1995 in para,,

2(xii) to mean the period of service rendered by the existing member from the date of joining Employees’ Family Pension Fund till 15.11.1995.,,

Learned counsel for the appellant/writ petitioner also submitted that as per para 10 sub para (2) of the Scheme of 1995, since the appellant/writ",,

petitioner stood superannuated on attaining the age of 58 years, therefore, a weightage of two years has to be added.",,

Learned counsel for the appellant/writ petitioner thus submitted that while applying the formula of monthly member’s pension as per para 12 of,,

the Scheme of 1995, the appellant/writ petitioner’s past service from 1980 has to be computed.",,

Learned counsel for the appellant/ writ petitioner has further drawn the attention of this Court towards Table B provided under the Scheme of,,

1995, which prescribes the relevant factor for computation of past service benefit (under the ceased) family pension scheme for existing members on",,

exit from the employment.,,

Learned counsel further submitted that since the appellant/ writ petitioner has completed 18 years of service, and while getting benefit of two",,

years under para 10 of the Scheme of 1995, he should be given the benefit of less than 21 years i.e. 135 to be multiplied by 7.056.",,

On the other hand, learned counsel for the respondent submitted that the Commission has computed pension applying the parameters of clause (b)",,

of sub para (5) of para 12 of the Scheme of 1995 and multiplying 135 by the service to be counted according to clause (c) of sub para (3) of para 12,",,

which permits the appellant/writ petitioner pension only against the service rendered between 16.11.1995 and attainment of the age of 58 years to be,,

multiplied by the factor given in Table B of the Scheme of 1995.,,

The provisions referred in the Employees Pension Scheme, 1995 by both the parties read as follows:",,

“2. Definitions.-,,

........ ....,,

(xii) “Past Service means the period of service rendered by an existing member from the date of joining Employees’ Pension Fund till 15th,,

November, 1995.â€​",,

Years of past service,"Salary upto Rs.2,500 p.m","Salary more than Rs.2,500 p.m

(I) Up to 11 years,80,85

(ii) More than 11 y ears but up to 15

years",95,105

(iii) More than 15 years but less than

20 years",120,135

(iv) Beyond 20 years,150,170

there is no reason why clause (c) of sub para (3) of para 12 of the Scheme of 1995 may not be applied and the past service pension payable be,,

determined, which is clearly laid down in the said clause.",,

This Court also finds that the learned Single Judge has also proceeded with the analogy that the factor as per Table B has to be 1.269 spelt out in,,

Table B. Since the appellant/ writ petitioner, after 1995, (as per clause (c) of sub para (3) of para 12 of the Scheme of 1995) had rendered service",,

upto 1997, which is 2 years and 15 days, therefore, less than two years will not apply and less than three years will apply, which is 1.269, and thus, the",,

payment due would be 135 x 1.269 i.e. 171 added to Rs.335 per month, as calculated by the respondent.",,

In light of the aforesaid observations, no interference is called for the in the present appeals, and the same are accordingly dismissed.",,