IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29437 of 2008(D)
1. K.A.RAJAPPAN, S/O. AYAPPAN,
... Petitioner
Vs
1. CHIEF PROVIDENT FUND COMMISSIONER,
... Respondent
2. THE REGIONAL PROVIDENT FUND COMMISSIONER
3. THE MANAGING DIRECTOR,
For Petitioner :SRI.M.V.THAMBAN
For Respondent :SRI.JOSEPH KODIANTHARA
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :25/01/2010
O R D E R
P.R. RAMACHANDRA MENON, J.
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WP(C) No. 29437 of 2008
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Dated, this the 25th day of January, 2010
J U D G M E N T
The petitioner is challenging Ext.P3 order passed by the 2nd
respondent denying the benefit of Employees’ Pension Scheme 1995,
stating that the petitioner is not entitled to get the same, he having been
opted for the same only after the date of retirement.
2. The specific case of the petitioner is that, the ‘option’ was
exercised by the petitioner then and there, when the scheme was
introduced in the year 1995, that the amounts were being caused to be
deducted and deposited to the 1st and 2nd respondents pursuant to the
representation filed in 1999 before the 3rd respondent and further that
the deficit amount was also satisfied pursuant to Ext.P2 issued by the
2nd respondent and it was thereafter that the 2nd respondent took a `U’
turn, to deny the benefit to the petitioner, wrongly stating that he had not
exercised the option.
3. The sequence of events as narrated in the Writ Petition
shows that the petitioner joined service under the 3rd respondent as a
worker on 08.03.1966. Subsequently he was selected and appointed as
a vehicle helper with effect from 22.09.1975 and after serving in the said
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capacity for more than three decades, the petitioner came out from the
service on attaining age of superannuation on 30.06.2008.
4. While the petitioner was serving the 3rd respondent as a
vehicle helper, Employees’ Pension Scheme was introduced; prior to
which, the petitioner was a member of Provident Fund right from
November 1969. Despite submitting the option to join the Scheme,
necessary contribution was not being deducted from the Provident Fund
Account of the petitioner; which hence was brought to the notice of the 3rd
respondent/employer by filing the representation, seeking to rectify the
mistake. Pursuant to the steps taken by the petitioner in this regard, the
position was verified and the mistake was rectified by the 3rd respondent
who started necessary deduction from the EPF account, as shown in the
table given under paragraph 5 of the Writ Petition.
5. After retirement from the service, the petitioner was
continuously knocking at the doors of the respondents for sanctioning the
PF pension under the 1995 Scheme. Pursuant to the request made by the
3rd respondent/employer, to submit the necessary form duly filled up
again, it was complied with by the petitioner and all the requisite materials
were furnished as borne by Ext.P1. Thereafter the 2nd respondent
required the petitioner vide letter dated 30.07.2008 to submit his
‘willingness’ to transfer a sum of Rs.83,022/- from the EPF Account, to the
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‘Pension Fund’; which in turn was readily satisfied by the petitioner, also
enclosing a ‘fresh form 1’ duly filled up. It was immediately thereafter, the
petitioner was served with Ext.P3 dated 19.09.2008 by the 2nd respondent
stating that, the claim for pension under the Scheme was rejected since
the petitioner had exercised the option only after attaining the age of 55
years; which is under challenge in this Writ Petition.
6. The counter affidavit filed on behalf of respondents 1 and 2
virtually does not dispute the various facts and figures as put forth by the
petitioner; but for stating that the petitioner had not opted for the Family
Pension Scheme 1971 or the Employees Pension Scheme 1995 till his
‘resignation’ (appears to be wrongly stated in place of ‘retirement’) on
30.06.2008. It is also stated that the payment effected by the petitioner
for the period from 1999 and 2007 to 2008 got merged with the EPF at the
time of settlement and reliance is sought to be placed on Ext.R1(a) to R1
(d) (various forms submitted by the petitioner at different points of time).
No counter affidavit or statement has been filed from the part of the 3rd
respondent/employer. The averments in the counter affidavit have been
rebutted by the petitioner by filing a reply affidavit, also producing a copy
of the ‘annual statement of contribution’ made by the petitioner for the
year 1999-2000 as Ext.P5.
7. The learned counsel for the petitioner submits that the stand
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taken by the 1st respondent that the petitioner submitted option form only
after the date of retirement is a misrepresentation; particularly when there
is no such case for the 3rd respondent/employer, through whom the option
was submitted by the petitioner at the relevant time. Similarly, it is to be
noted that the petitioner himself volunteered to alert the 3rd
respondent/employer as to the omission from the part of the said
respondent in deducting the necessary contribution from the EPF
account, to be credited to the Pension Fund and it was accordingly that
the mistake was rectified by the 3rd respondent/employer and deduction
was made right from 1999 till the date of retirement in 2008, remitting the
same to the Pension Scheme of the 2nd respondent. There was no such
case for any of the respondents while instructing the petitioner as per
letter dated 30.07.2008 to submit ‘willingness’ to transfer a sum of
Rs.83,022/- from the EPF Account to the Pension Fund, which was
complied with by the petitioner as borne by Ext.P2. As borne by the table
given in paragraph 5 of Writ Petition, a total sum of Rs.54,526/- had
already been deducted from the EPF accounts of the petitioner and were
adjusted towards the Employees Pension Scheme, which aspect is rather
conceded in the counter affidavit filed from the part of the 1st and 2nd
respondents as well.
8. As rightly pointed out by the learned counsel for the
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petitioner, Ext.R1(a) ‘nomination form’ produced by the respondents 1 and
2 itself shows that, it is in respect of both the ‘EPF’ and ‘EPS’. Under Part
A of Ext.R1(a) pertaining to EPF, the petitioner has nominated his wife
Ratnavalli Rajan as the beneficiary. Similar nomination has been made
under Part B pertaining to the Employees Pension Scheme as well. The
said proceedings bear the signature of the Manager, Personnal and
Administration of the 3rd respondent/employer, also bearing the seal.
Similarly, all the other documents Exts.R1(b) to R1(d) produced by the
respondents 1 and 2 also bear the seal of the 3rd respondent/employer.
That apart, Ext.P5 produced by the petitioner along with the reply affidavit
shows that a sum of Rs.5,004/- was deducted towards the Pension fund
in respect of the petitioner for the year ‘1999-00’. By virtue of these
undisputed facts, this Court comes to the irresistible conclusion that the
petitioner had submitted the ‘option’ much before, while he was in service
and that his version that the employer committed a mistake in not
effecting deduction and transferring the amount to the Pension Scheme
when they were alerted and accordingly they started to deduct the same
and remit to the respondents 1 and 2 from the year 1999 onwards
appears to correct. The deduction as well as the remittance of the amount
to the pension scheme from the year 1999 till the date of retirement in
June, 2008 having been admitted from the part of the respondents, the
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plea now put forth vide Ext.P3, that the petitioner had submitted ‘option’
only after attaining age of 58 years cannot be taken without a pinch of
salt. It appears that some mistake or omission has occurred at the hands
of the respondents, though the exact point is not brought to the notice of
this Court; for which the blame has been simply put up on the shoulders
of the petitioner, denying him the benefits available under the Scheme,
which cannot but be deprecated in the strongest possible words.
9. In the above circumstances, it is declared that the petitioner
had exercised his option much prior to his retirement and appropriate
deduction being made from 1999 onwards and the deficit amount to top
up the extent of contribution payable in respect of a person who was not a
member of this scheme as provided in paragraph 7 (3) read with
paragraph 17(3) of the scheme enabling such exercise having been
satisfied as revealed from Ext.P2, the respondents are very much liable to
pay the pension to the petitioner; denial of which is per-se arbitrary and
illegal.
10. Accordingly, Ext.P3 order passed by the 2nd respondent is set
aside. The respondents are directed to pursue and finalise all necessary
steps to pay the pension payable to the petitioner under the Employees
Pension Scheme 1995 and the amount shall be disbursed with interest as
provided under the Scheme as expeditiously as possible, at any rate,
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within two months from the date of receipt of a copy of this judgment. In
the view of the observation in Ext.P3 that the amount already remitted by
the petitioner under the Pension Scheme will stand merged with the EPF
account; the petitioner will have to satisfy the required extent of
contribution as expeditiously as possible, at any rate, within two weeks
from the date of raising the demand in this regard.
The Writ Petition is allowed as above. No cost.
P. R. RAMACHANDRA MENON
JUDGE
dnc