Ramachandran P.T. vs Regional P.F. Commissioner and Others

R. Sudhakar, J.—The writ petition is filed to issue a writ of certiorarified mandamus calling for the records of the second respondent

pertaining to the Pension Payment Order in P.P.O. No. TN/MDU 13646 dated August 26, 1997 and to quash the Pension Payment Order as

contemplated under the provisions of the Employees'' Pension Scheme 1995 and direct the second respondent to fix the pension of the petitioner

which he is entitled to as per the benefits provided in para 12(5)(a) and (b) and to determine eligible service as per para 9(b) of the Employees''

Pension Scheme.

The brief facts of the case is as follows: Petitioner joined in the services of the third respondent Tiruchendur Co-operative Spinning Mills Limited

as a Spinning Fitter on October 1, 1963 and retired on January 20,1997 on attaining the age of 58 years. According to the petitioner, he was

enrolled as a member of the Employees'' Provident Fund Scheme with effect from September 1, 1965. Thereafter, he joined the Family Pension

Scheme with effect from June 1, 1971. Petitioner became a member of the Employees'' Pension Scheme 1995 with effect from November 16,

1995 till January 20, 1997. According to the petitioner, the total period of service is 31 years (6+24+1 =31). Complying with the requirements for

release of pension, Form 10-D was submitted on April 2, 1997 and was processed and sanctioned by the second respondent, EPF Organisation,

Sub Regional Officer at Madurai. On August 26, 1997, Pension Payment Order was passed in PPO No. TN/MDU/13646 and EPF Account No.

TN/3926/257. According to the petitioner, in the Pension Payment Order, he found that there was a glaring discrepancy in the number of years of

service. According to the Pension Payment Order, in Serial No. 7, the past service upto November 15, 1995 is shown as 18 years and in Serial

No. 9, the total qualifying service is shown as 19 years (6+7+8 = 19 years). This according to the petitioner is wrong. Petitioner also states that the

quantum of monthly member pension fixed is wrong. On request made by the petitioner, the employee of the petitioner, viz., the third respondent

sent letters dated February 12, 1998, October 7,1998, November 23, 1998 and May 12, 1999 recommending for enhancement of pension

clarifying the discrepancy. This, however, was not accepted. The third respondent employer in his letter dated October 7, 1998 has specifically

stated that the break in service of the petitioner is only 296 days and therefore, the error in calculation based on lesser years of service should be

corrected. Since there was no response to these representations and recommendation made by the third respondent employer, the petitioner

approached the Taluk Legal Service Committee, Srivaikundam. A legal notice was also issued to the first respondent Regional Provident Fund

Commissioner, Employees'' Provident Fund Organisation, Tirunelveli, to which it is stated by the respondents 1 and 2 that reply was given. On

record, however, no such reply is available at present.

Learned Counsel for the petitioner stated that the pension has been wrongly fixed at Rs. 375/- per month and not in accordance with para 12(5)

(a) and (b) of the Employees'' Pension Scheme 1995 which reads as follows:

(5) In the case of an employee who was a member of the ceased Family Pension Scheme, 1971 and who attained the age 53 years or more on

November 16, 1995, the superannuation/retirement pension shall be equal to the aggregate of:

(a) pension as determined under sub-paragraph (2) for the period of service rendered from November 16, 1995 per month or Rs. 335/- per

month, whichever is more.

(b) past service benefits provided in sub-paragraph (3) subject to the minimum of Rs. 500/- per month provided the past service is 24 years.

Provided further that if it is less than 24 years the pension payable and the past service benefits shall be proportionately lesser but subject to the

minimum of Rs. 265 per month.

According to the petitioner, the aggregate of pension should be Rs. 335/- and past service benefits of Rs. 500/- totalling to Rs. 835/- per month.

The further case of the petitioner is that in the Pension Payment Order, while determining the total qualifying service, it has been wrongly shown as

19 years as against 30 years as per records. In this circumstances, the writ petition has been filed to quash the pension Payment order dated

August 26, 1997 and to refix the pension by granting benefits provided under para 12(5)(a) and (b) and to determine the service in terms of para

9(b) of the Employees'' Pension Scheme.

Learned Counsel for petitioner further submitted that after the Regional Provident Fund Authority issued the Pension Payment Order based on

the Form-10D submitted by the employer and on receipt of the Pension Payment Order dated August 26, 1997, the representation as above were

made by the petitioner. This has been forwarded to the authorities concerned within a short period (i.e.) in February 1998. The third respondent

has also recommended the case of the petitioner for enhancement of pension based on service records. Therefore, petitioner has taken immediate

steps to redress his grievance for revising the Pension Payment Order and there is no delay or laches on his part.

A counter-affidavit has been filed by the respondents 1 and 2 stating that based on records that were forwarded by the employer, the third

respondent, invoking the Family Pension Scheme 1971, and Employees'' Pension Scheme, 1995, determined the period of actual service as 19

years. The further case of the respondents 1 and 2 is that once the Pension Payment Order is passed, there is no provision for modifying the same.

The manner in which the Pension Payment Order has been worked out has been shown for the first time in the counter-affidavit. According to the

respondents 1 and 2, they have complied with the provisions of Employees'' Pension Scheme, 1995. As regards the claim for longer period of

service is concerned, the specific stand of respondents 1 and 2 is that the period of service has been taken based on the statement made by the

employer, the third respondent. There is no scope or specific provision for revising the order after issue of Pension Payment Order. On this

premise, the writ petition is opposed.

Third respondent has filed a counter-affidavit supporting the writ petitioner. Para 3 of the counter-affidavit reads as follows:

(3) I submit that at the time of retirement, details of break-in-service of the petitioner was furnished to the respondents for pension. However the

particulars were not properly furnished to the respondents 1 and 2. Therefore on coming to know of the same, and also in view of the request

made by the writ petitioner, this respondent furnished the revised break-in-service details to the respondents 1 and 2 and also requested the

respondents 1 and 2 to enhance the pension to the petitioner based on the revised break-in-service by its various letters dated February 12, 1998,

November 10, 1998 , November 23, 1998 and May 12, 1999. But, the said requests were rejected by the respondents 1 and 2 stating that any

revised break in service details shall be brought to the respondents 1 and 2 before they accept or pass pension payment order.

Third respondent employer has clearly stated that they have recommended the case of the petitioner for enhanced pension based on records

pursuant to the representation made by the petitioner immediately after the Pension Payment Order was passed.

The dispute in the present case basically revolves around the period of service of the petitioner under the third respondent. It is not in dispute

that at the time of submitting the Form-10D, the period of service has been shown far less than the actual period. This was corrected by the third

respondent employer subsequent to the Pension Payment Order after noticing the mistake as pointed out by the petitioner. Even assuming the

Form-10D which has been submitted does not contain the correct details, the petitioner has made a representation within a reasonably short time

to correct the error and the employer has also recommended the case after noticing the mistake. In such circumstances, the respondents 1 and 2

should have considered the representation and pass a detailed order explaining the manner in which the Pension Payment Order has been passed.

It is only in the counter-affidavit, the explanation is given. It is not for this Court to look into the details and verify the Pension Payment Order with

mathematic calculation. Respondents 1 and 2 have also to consider the recommendation made by the employer with regard to the length of service

based on records. After considering the same, the question of application of para 12(5)(a) and (b) will have to be considered. These are matters

which have to be factually verified before any order is passed regarding the petitioner''s claim. If there is an error, the respondents 1 and 2 will

have to explain whether such error can be rectified or not. The only reason given is that once the Pension Payment Order is issued, it cannot be

revised. No provision of law, rule or regulation has been shown as to why the request of the petitioner duly recommended by the third respondent

employer cannot be considered. There is no delay or laches on the part of the petitioner. If it is a bona fide mistake and if there is no impediment

under the scheme, the petitioner cannot be shut out stating that genuine and bona fide errors cannot be corrected.

Since the grievance of the petitioner is based on the service records and consequent interpretation of the provisions of the Employees'' Pension

Scheme as applicable from time to time, this Court is not inclined to interfere and quash the Pension Payment Order at this stage. On the contrary,

in the interest of justice, it will be just and reasonable if the 1st respondent is directed to consider the representation of the petitioner along with the

recommendation of the third respondent employer for revising the period of service and consequently enhance the pension by way of a reasoned

order explaining the manner in which the pension payment order has been issued. Petitioner is also entitled to make further representation to the

first respondent explaining his case. First respondent will look into the representation of the petitioner objectively, based on records to be

produced and pass a detailed order on merits within a reasonable period of time. To this relief the petitioner''s claim is justified. If aggrieved,

petitioner can challenge the same as per law.

In the result, the relief of certiorari to quash the Pension Payment Order is negatived. On the contrary, petitioner is entitled to the relief of writ of

mandamus. Accordingly, the first respondent is directed to pass a reasoned order based on the petitioner''s representation already made and

further representation if any together with the recommendation of the third respondent employer and pass a reasoned order on merits. Petitioner is

entitled to make further representation if any within two weeks from the date of receipt of a copy of this order and the first respondent shall

dispose of the same within six weeks thereafter. The Writ Petition is ordered accordingly. No costs.