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P.Sadasivampillai v. The Regional Commissioner - W.P.No.18285 of 2000  RD-TN 234 (9 April 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE V.KANAGARAJ
W.P.No.18285 of 2000
3. S.Bhaskaran Nair
4. P.Sukumaran Thampi
5. R.Nalinakshan Nair
6. C.Mahadevan Thampi
15.P.Thankamony .. Petitioners Vs.
1. The Regional Commissioner,
Employees Provident Fund
Pattom, Trivandrum-695 005.
2. The Executive Director,
M/s.Indian Rare Earths Ltd.,
Pin - 629 252. .. Respondents. Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus as stated therein.
For petitioners : Mr.M.Kandasamy for Mr.L.Chandrakumar
For respondents : Mrs.Kala Ramesh for M/s.Radha Srinivasan(R.1) Mr.R.Thiagarajan
for Mr.M.Muthappan (R.2) :O R D E R
Petitioners have filed this writ petition praying to issue a Writ of Mandamus directing the respondents to extend the benefits of pension to the respective petitioners arising out of Employees Pension Scheme, 1995 on the basis of option already exercised and consequently settle all arrears arising thereto from the date of their retirement respectively and to continue to pay the same as applicable.
2. In the affidavit filed in support of the writ petition, the petitioners would submit that they were the employees of the second respondent, which is a Government of India undertaking; that the petitioners have retired on attaining the age of superannuation between 1994 and 1998; that they were the members of the Provident Fund Scheme and the Employees' Pension Scheme which was introduced during 1995; that the pensionary benefits were implemented with effects from 16.11.199 5 under Section 6 and 7 of the Act by the Government of India; that though the second respondent is a quasi-judicial vested with the powers of implementing and extending the said benefits, failed to do so; that the second respondent ought to have extended the benefit of the Pension Scheme since they have made contributions to the employees provident fund.
3. The petitioners would further submit that they made representation to the authorities concerned, for which there was no response and that they resorted to a lawyer's notice which came to be replied stating that since the petitioners have already retired and the settlement had been made in their favour, it may not be possible to re-open their cases; that if such a contention is allowed to be taken, the purpose of the legislation, the Scheme and the object behind which the same came to be introduced would not only be defeated, but also to be given a total go by and moreover, the pension scheme specifically and categorically fixed the date, more particularly a crucial date i.e. 1 6.11.1995 for coming into force and making those who have retired on and after 1.4.1993, to become eligible.
4. The further averments of the writ petition are that the second respondent had obtained exemption from the Provident Fund under Section 17 of the Provident Fund Act 1952 by itself managing the administrator of the Provident Fund and the exemption was originally obtained on the assurance that the establishment would prove all benefits out of the Act; that while so, after introduction of the pension scheme, the second respondent failed to grant consequential flow out of the same and when the same was questioned, it replied that the same was for the reason that the pension scheme continues of the Family Pension Fund Scheme, 1971 and only those who were members in the Family Pension Scheme allowed are entitled to the benefits under the Employees Pension Scheme, 1995; that similarly placed persons, viz., P. Thangappan, E.Thanganathan, C.Dhuraikannu and L.Ponnumani have been extended the benefits on remittance of the already settled amount back to the office, and that the petitioners are similarly placed persons and also having undertaken to do so the non-extension amounts to arbitrary colourable exercise of power, thus infracting Articles 14 and 16 of the Constitution of India.
5. The petitioners would further submit that the neglected retirees of the Central Public Sector Undertakings have filed writ petitions before various High Courts and it is understood that the Apex Court is seized of the matter and awaits final verdict. Hence, under these circumstances, the petitioners would submit that they are also similarly placed and are entitled to the relief of pensionary benefits as per the new scheme. It is also submitted that it has been repeatedly held by the Apex Court, even from Nakara's case till date that any beneficial legislation more particularly, beneficial scheme in relation to accord of Pension should be extended at the earliest to the individuals concerned and in case the scheme prescribes withdrawals of the benefits already extended due to the regulations prevalent at that time, the Apex Court has directed the adjustment of the payments already made and to disburse the rest after the said adjustment. Therefore, the judicial view being harmonious sympathetic and humanely couched in favour of the petitioners, the delay in extending the said benefits to the petitioners has resulted in them becoming eligible for interest also on the belated payments. The petitioners would also submit that the second respondent has failed to obtain the option from the petitioners, who retired on and after 1.4.1994, and extend the benefit of the pension scheme which came into effect with effects from 16 .11.1995, thus infracting Article 21 of the Constitution of India. It is further submitted that though the petitioners have retired on and after the crucial date 1.4.1993, they have not been extended the benefits of the pension scheme. Hence, the writ petition.
6. No counter has been filed on the part of the respondents denying the averments made in the writ petition.
7. During arguments, the learned counsel appearing on behalf of the petitioners would submit that the Employees' Pension Scheme was introduced in the year 1995 giving retrospective effect from 1.4.1993; that Section 17(1A) and (1C) of the Employees' Provident Funds and Miscellaneous Provision Act, 1952 says that the appropriate Government have been given the power to exempt from the operation of all or any of the provisions of the Family Pension Scheme to any establishment to which this Act applies, but no such exemption has ever been granted to the second respondent management; that it is under Section 6A(2), the Family Pension Fund is established into which the Family Pension shall be paid from time to time in respect of every such employee.
8. The learned counsel would then point out that this pension is sought to be denied on grounds, (i) that they were not the members of the Family Pension Fund and (ii) that all the pensionary benefits have already been settled. Citing the index, the learned counsel would say that this relates to the Provident Fund and Pension Scheme and it has no relevance to the Family Pension Scheme at all; that the authority cannot put an embargo on ground that the Family Pension Fund Scheme is not the deciding criteria; that no denial comes forth from the respondents nor any counter filed; that even in the notice issued by petitioners, they have pointed out their entitlement and the judgment also does not say anything against and that the Family Pension Fund does not put an embargo in the way of the Pension Scheme being extended in favour of the petitioners. On such arguments, the learned counsel for the petitioners would pray to grant the relief sought for in the writ petition.
9. In reply, the learned senior counsel appearing on behalf of the second respondent would point out that under Chapter V of the Pension Scheme, they have a schedule of their own; that the Scheme came into force on 16.11.1995; that the Rule says that if an employee is entitled to the benefit of the Pension Scheme, he must give his option to become the member of the Scheme and that the Employees Pension Scheme, 1995 is only a continuation of the Family Pension Scheme, 1971; that though the petitioners were the members of the provident fund scheme, they were not the members of the Family Pension Fund; that those who have joined the service on or after the cut off date are to become mandatorily members of the Scheme; that the petitioners have never opted to become the members of the Family Benefit Fund, so they are not entitled to claim any benefit under the said Scheme; that the petitioners having withdrawn all the amounts accumulated in their provident fund account, in their credit, after their retirement, their plea to become members of the Employees' Pension Scheme after the retirement from service is untenable; that after a lapse of two to six years from the date of retirement and after full settlement of the retirement benefits, the petitioners cannot receive any amount with interest towards the Employees' Pension Scheme as alleged; that the petitioners are not eligible to claim pension as they are not members of the Employees' Pension Scheme, 1995 and therefore, there is no question of granting pension for them.
10. Learned counsel appearing for the first respondent would adopt the arguments of the learned senior counsel appearing for the second respondent and he would put it in a nutshell that unless the petitioners exercise their option, they do not come under the Scheme and hence their claim is not bona fide. On such arguments, both the learned counsel would pray to dismiss the writ petition as without merit.
11. In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, what could be assessed by this Court is that the petitioners, who retired on attaining the age of superannuation between the year 1994 and 1998 claiming that they were the members of the Provident Fund Scheme and the Employees' Pension Scheme, which was introduced during 1995 and while the pensionary benefits were implemented with effects from 16.11.1995 by the Government, the second respondent being vested with the powers of implementing and extending the said benefits, failed to do so, and therefore, issuing the necessary notice to the second respondent, claiming that it ought to have extended the benefit of the Pension Scheme, since they have made contributions to the Employees' Provident Fund, have come forward to file the above writ petition praying to direct the respondents to extend the benefits of pension to the respective petitioners arising out of Employees' Pension Scheme, 1995 on the basis of option already exercised and consequently directing to settle all arrears thereto from the date of their retirement respectively and to continue to pay the same as applicable.
12. On the part of the respondents, they would claim that either the petitioners having retired prior to the introduction of the Scheme on 16.11.1995 or under pretext that they have not given their options to become members of the Employees' Pension Scheme or claiming that it is only those who joined the service on or after the cut-off date are to become mandatorily members of the Scheme and those who joined the services of the company before the c ut-off date, must give their option to become members of the Scheme, lest, they would not become entitled to the benefit of the Scheme; that as per the records kept in the second respondent company, since the petitioners have not opted to become the members of the Family Benefit Fund, they are not entitled to claim any such benefit under the Scheme.
13. These arguments advanced on the part of the respondents would be thwarted by the petitioners stating that it is not only that the Employees' Pension Scheme came into effect on 16.11.1995, but also an option has been given to the employees therein to become members of the Scheme w.e.f. 1.4.1993 thus giving retrospective effect to the said date, and therefore, the date of introduction of the Scheme, viz., 16.11.1995 could not be taken as the cut off date, as it is misconstrued by the respondents, and moreover, the petitioners claiming to be the existing members to the Pension Benefit Fund and the members of the Provident Fund Scheme and the Employees' Pension Scheme and having retired on attaining the age of superannuation between 1994 and 1998 , the second respondent, who is vested with the powers of implementing and extending the benefits of the Scheme, failed to do so and hence the writ of mandamus directing the respondents to extend the benefit of the Employees' Pension Scheme, 1995 to all the petitioners on the basis of the option already exercised and consequently to settle all arrears and continue to pay the same as applicable.
14. Moreover, Sub clause (v) of the definition clause 2 of the Employees' pension Scheme, 1995 would define that "eligible member" means an employee who is eligible to join the Employees' Pension Scheme, meaning thereby that an employee need not necessarily to have joined the Employees' Pension Scheme and if he has got eligibility to join the Scheme, he is construed an eligible member.
15. Likewise, sub clause (vi) of the definition clause 2 of the Scheme would define that "existing member" means an existing employee who is a member of the Employees' Family Pension Scheme, 1971. Therefore, in the wake of the new Scheme introduced, there is no point on the part of the respondents to argue either the petitioners have already retired on attaining the age of superannuation or that their pensionary benefits were already settled and hence any new Scheme introduced even after an employee has attained the age of superannuation since he being a pensioner and having rendered a "pensionable service" within the meaning of sub clause (xv) of the definition clause 2, it is implied that the petitioners are construed to be the members of the Provident Fund Scheme, thus becoming entitled to the benefit of the Scheme introduced.
16. Moreover, whether it is regarding the claim of the petitioners that they were already members of the provident Fund Scheme and the Employees Pension Scheme, since having not specifically rebutted by means of a counter affidavit or even in the arguments advanced on the part of the respondents, this Court is left with no option but to go by the affidavit sworn by the petitioners, and therefore, easy conclusions could be arrived at that the petitioners are entitled to the benefit of the Pension Scheme and the second respondent ought to have extended the same in favour of the petitioners as claimed by them.
17. Further, it could be seen that as per the provisions of paragraph 4 of the Employees' Family Pension Scheme, 1971, a statutory duty is enjoined with the employer to get the formalities of option to form the Scheme by the employees completed within six months from March 1, 1971. As per the letter and spirit of this provision, the employer becomes statutorily bound to see that all his members exercise their option to become a member of the Employees' Family Pension Scheme, 1971.
18. Therefore, in the above circumstances, it is needless to mention that the respondents should have considered the requests of the petitioners for extending the benefits of the Employees' Pension Scheme introduced during 1995, thus conferring all such benefits of pension arising out of the Employees' Pension Scheme, 1995, further settling all arrears arising thereto from the date of their retirement and continue to pay the same as applicable. In result,
(i) the above writ petition succeeds and the same is allowed: (ii) the respondents are directed to extend the benefit of pension to the petitioners arising out of Employees' Pension Scheme, 1995 on the basis of the option already exercised by them;
(iii) consequently, the respondents are further directed to settle all arrears arising thereto from the date of the petitioners' retirement respectively and to continue to pay the same as applicable; (iv) the respondents are also directed to carry out the above directions within sixty days from the date of receipt of a copy of this order. W.P.M.P. No.26489 of 2000 is closed.
However, in the circumstances of the case, there shall be no order as to costs.
The Regional Commissioner,
Employees Provident Fund
Pattom, Trivandrum-695 005.
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