Om Prakash Mishra vs Central Provident Fund Commissioner

Veerendra Singh Siradhana, J.—The petitioner, in the instant writ application, has approached this Court praying for writ, order or direction to declare the action of the respondents as null and void, in not releasing the pension of the petitioner and for a further direction for release of his pension with interest @ 18% per annum.

Briefly, the indispensable essential material facts necessary for appreciation of the controversy needs to be first noticed. The petitioner was employed somewhere in the year 1969 with the Martin & Harris Services Private Limited at Kolkata and was later on transferred to New Delhi Branch of the Company (respondent No. 3). It is pleaded case of the petitioner that he was a member of the Provident Fund Scheme and his PF Account Number is DL/20516/15. He retired acquiring the age of superannuation of on 31st January, 2005. He has further pleaded that he also became the member of Pension Scheme, 1971 and 1995, after having completed of all the required formalities. After his retirement, he received a communication dated 5th August, 2005 from the office of Employees Provident Fund Organization, New Delhi (respondents No. 1, 2 & 4 herein), calling upon him and his employer to fulfill certain required conditions as per requirement of law. The communication sought clarification from his employer (respondent No. 3), for not including the petitioner as a member of the Pension Scheme. The petitioner, in response to the communication aforesaid, addressed a letter on 25th August, 2005, expressing his willingness for availing the benefits of Family Pension Scheme, 1971 (hereinafter referred to as the ''FPS, 1971, for short) and Monthly Pension Scheme, 1995. From the materials available on record, it is evident that an amount of Rs. 58,888/- was also released in favour of the petitioner on account of Provident Fund. The petitioner, after repeated representations, claiming benefits of Pension Scheme, addressed a legal notice through his counsel on 1st November, 2007. The representations as well as the notice have not evoked any response and, therefore, has instituted the writ proceedings in the year 2008.

In response to the notice of the writ application, the respondents (Provident Fund Commissioner), have filed its counter affidavit pleading that the petitioner never submitted his option for joining the Employees Family Pension Scheme, 1971 or Employees Pension Scheme, 1995. Since no application form either from the petitioner or from his employer, during the period of employment of the petitioner with M/s. Martin and Harris Services (P) Ltd. at Kolkata (WB), was ever received; therefore, the claim is liable to be dismissed on that count alone. Referring to the text of the paragraphs of the Family Pension Scheme, 1971, it is further pleaded that every employee, who was a member of the Employees Provident Act, 1952, immediately before the commencement of the scheme of 1971; was required to submit his option to join the Scheme, which came into force w.e.f. 1st March, 1971. The option was to be exercised in form-1 within a period of six months from 1st March, 1971. The petitioner, who was a member of the Employees Provident Fund since 1970, never opted to join the Family Pension Scheme, 1971. Furthermore, the petitioner applied for Withdrawal of the benefits under the Employees Pension Scheme 1995 by submitting form 10-C. Moreover, the petitioner did not complete the period of ten years, as a member of the Employees Pension Scheme, 1995, therefore, he is not entitled to the benefits of the Scheme of 1995. In order to settle the claim of the petitioner under the Employees Pension Scheme, 1995 an amount of Rs. 22,445/- was released in his favour in the month of November, 2006. That apart, an amount of Rs. 38,883/- was released in favour of the petitioner for settlement on account of Employee Provident Fund settlement for the period w.e.f. 1st November, 1997 to 31st January, 2005. The petitioner, who joined the services of the respondent No. 3; his contribution was deducted and deposited under code No. WE/5166/1168, that was maintained by the Regional Provident Fund Commissioner, Kolkata (WB) for the period w.e.f. 1st November, 1970 to 31st October, 1997. The Family Pension Scheme, 1971 was optional for the members, who had joined the Employees Provident Fund Scheme prior to March, 1971. The petitioner having not opted to join the Family Pension Scheme 1971, no contribution was received from him. It is further pleaded that as a result of transfer of the Provident Fund amount from the office of Regional Provident Fund Commissioner, Kolkata (WB) to the Regional Provident Fund Commissioner, New Delhi, an amount of Rs. 2,17,954/- (Rs. Two lac seventeen thousand nine hundred fifty four) with interest accrued thereon, has also been released to the petitioner in the month of September, 2006, as a full and final settlement under the Employees Provident Fund Settlement.

I have heard the learned for the parties and perused the materials available on record.

The Central Government in exercise of powers conferred by virtue of Section- 6 of the Act of 1952, framed Employees'' Family Pension Scheme, 1971. Paragraph 3 of the Scheme of 1971 contemplates application of the Scheme to every employee subject to sub-paragraph (3) of paragraph 1 of the Scheme. Further, a member of the Employees'' Provident Fund Scheme, 1952, immediately before the commencement of the scheme of 1971, was required to submit his option in accordance with paragraph 4 of the Scheme.

In the present case at hand, the petitioner has not placed on record even an iota of evidence to substantiate the fact that he ever opted for Family Pension Scheme, 1971 while working at Kolkata with his employer. No doubt, the petitioner was a member of the Provident Fund Scheme as per the provisions of Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the ''Act of 1952'', for short).

Neither there is any material available on record nor the petitioner has been able to lay any factual foundation to substantiate the fact that he ever exercised his option, in accordance with paragraph 4 of the Scheme, 1971, for joining the Pension Scheme. The scheme of 1971 also contemplates for contribution to the family pension fund of the employees. The employer is required at the first instance to pay both the contribution payable to the Family Pension Fund by himself and also on behalf of the members of the family pension fund, employed under him. In the instant case at hand, the petitioner did not submit any option at the relevant point of time and no deduction on that count was made till his retirement by the employer and deposited with the Provident Fund Commissioner.

In the year 1995, the Central Government in exercise of powers conferred by virtue of Section 6 of the Act 1952, introduced to Employees Provident Fund Scheme, 1995 and the earlier Pension Scheme of 1971 seized to operate w.e.f. 16th November, 1995.

Paragraph 6 of the scheme of 1995 which reads thus:-

Membership of the Employees'' Pension Scheme-Subject to sub-paragraph (3) of paragraph 1, the Scheme shall apply to every employee--

(a) who on or after the 16th November, 1995, becomes a member of the Employees'' Provident Fund Scheme, 1952, or of the Provident Funds of the factories and other establishments exempted by the appropriate Government u/s 17 of the Act, or in whose case exemption has been granted under paragraph 27 or 27-A of the Employees'' Provident Fund Scheme, 1952, from the date of such membership;

(b) who has been a member of the ceased Employees'' Family Pension Scheme, 1971 before the commencement of this Scheme from 16th November, 1995;

(c) Who ceased to be a member of the Employees'' Family Pension Scheme, 1971 between 1st April, 1993 and 15th November, 1995 and opts to exercise his option under Paragraph 7;

(d) who has been a member of the Employees'' Provident fund or of Provident Funds of factories and other establishments exempted by the appropriate Government u/s 17 of the Act or in whose case exemption has been granted under Paragraph 27 or 27A of the Employees'' Provident Fund Scheme, 1952, on 15th November, 1995 but not being a member of the ceased Employees'' Family Pension Scheme, 1971 opts to exercise his option under paragraph 7.

Since the petitioner was neither a member of the earlier scheme of 1971 nor he had submitted any option at any point of time, therefore, his claim cannot be sustained.

Be that as it may, as per the requirement of paragraph 12 of the Scheme of 1995, a member shall be entitled to superannuation pension, if he has rendered eligible service of 10 years or more and retires on attaining the age of 58 years. In the instant case at hand, it is not disputed that the contribution under the Employees Pension Scheme w.e.f. 1st November, 1997 to 31st January, 2005; the petitioner did not complete the period of 10 years and, therefore, his claim cannot be sustained under the Scheme of 1995 as well.

Keeping in view the peculiar facts, circumstances and materials available on record, more particularly, in the face of the fact that the petitioner did not opt at any point of time or became a member of the Pension Scheme of 1971 and no deductions were ever made from his salary at any point of time; his claim is absolutely baseless. Furthermore, it is surprising that the petitioner after having received the entire amount that became due on his superannuation, at various intervals, yet has staked his claim for pension, even after having settled the provident fund accounts finally with the respondents.

From the materials available on record, it is also reflected that on account of Provident Fund contribution, including the contribution of the employees, the contribution amount was deposited by the employer of the petitioner with the Provident Fund Commissioner and that amount has been received by the petitioner as detailed out in the counter affidavit of the respondent-Fund Commissioner.

For the reasons and discussions aforesaid, the writ petition preferred by the petitioner is devoid of any substance and deserved to be dismissed.

Ordered accordingly.

However, in the facts and circumstances of the case, there shall be no order as to costs.