In Re : Pagali Debi

Ruma Pal, J.—The petitioner is the only daughter of the Kailash Mondal, who was an employee of Shyamsundarpur Colliery. East Sitalpur Unit under the respondent No. 2. The petitioner has said that she lost her mother sometime age. On 16th August, 1986 the petitioner''s father also died. The petitioner''s father had certain amounts accumulated to his credit with the Coal Mines Provident Fund. The petitioner applied to the authorities for payment of the fund standing to the credit of her father''s name. Her application was rejected by the Assistant Commissioner-II of the office of the Coal Mines Provident Fund at Assansol on 17th September, 1993. The reason given is that according to the Coal Mines Provident Fund scheme, a daughter married before the death of the employee is not entitled to get the provident Fund dues of her deceased-Rather. The petitioner has challenged this decision on two grounds. Firstly, it is stated that the scheme is contrary to the Hindu Succession Act, 1956 which has named the married daughter as a Class I heir. The second submission is that the provision in the scheme excluding the married daughter is violative of Articles 15 and 16 of the Constitution. This application is in fact appeased by the respondent No. 1.

As far as the respondent Nos. 2 and 3 are concerned, they say that they have paid all the dues in respect of the deceased employee to the petitioner. This has also been admitted by the petitioner.

The learned Counsel appearing for the respondent No. 1 has contended that u/s Hindu Succession Act any proviso enactment relating to the evolution of an estate prior to the coming into force of the Hindu Succession Act was outside the scope of the Hindu Succession Act, 1956. It is stated that the Employees, Provident Fund Act. 1948 as well as Coal Mines Provident Fund Scheme framed thereunder fell within this exclusion, the Act having been enacted in 1948 and the Scheme having been framed in 1952. There was as such no conflict between the two as contended by the petitioner.

The second submission of the respondent No. 1 is that the provisions of the Coal Mines Provident Fund Scheme are not unconstitutional as reasonable classifications have been made by which the married daughters and others, who are able to look after themselves such as sons, who hi attained majority, have been treated as a class apart.

In my view it is not necessary to consider the submission of the petitioner as the Scheme does not in fact deprive an unmarried daughter. The rule regarding payability of accumulation of a deceased regarding payability of accumulation of a deceased member is contained in Rule 6A of the Scheme. That rule provides that upon death of a member, if nomination has been made, the amount accumulated to the member''s credit will be paid to the nominee. If no nomination has been made, it shall be paid to the members of his family in equal shares. There is a proviso to this namely that no share shall be payable to -

(a) sons who have attained majority:

(b) sons of a deceased son who have attained majority;

(c) married daughters whose husbands are alive; and

(d) married daughters of a deceased son whose husbands are alive.

If there is any member of the family other than these specified in the foregoing clauses. In other words, if there is no other member of the family of the deceased employee, the persons who have been excluded will be entitled to a share in the deceased''s Provident Fund. It is the petitioner''s case that apart free herself there is no other member is the family of the deceased employee alive. However, from the impugned decision it appears that reference has been made to one Sm. Gita Mondal as being the wife of the deceased member.

Accordingly this writ application is disposed of by directing the Assistant Commissioner-II to held an enquiry to ascertain whether the deceased had any member of his family alive apart from the writ petitioner. Such enquiry must be concluded within a period of four weeks from the date of communication of this order. If it is found that there is no member of the family as claimed by the writ petitioner, the accumulated Provident Fund shall be made over to the petitioner within 24 hours of such decision. If it is found that there is such a member, a reasoned decision must be given. The Assistant Commissioner-II must give an opportunity to the petitioner of being heard before taking any decision in the matter. At least 48 hours clear notice must be given to the petitioner. If inspite of such notice, the petitioner chooses not to be present, the Assistant Commissioner-II may decide the matter ex parte on the basis of the materials available. Let xerox copy of this order be given to the parties, if applied for, on the usual terms and undertaking.