JUDGMENT
Amitava Lala, J.
1. SBI Home Finance Limited, petitioner No. 1 company is promoted by the State Bank of India. By making this writ petition by the pen of one Sri Pradip Kumar Bose, a shareholder and Chief Manager, Legal, the petitioner company sought for certain orders in nature of declaration that the show-cause notice dated September 28, 2000 and the order dated November 30, 2000 and January 3, 2001 are illegal, unconstitutional and void. Therefore, the, same should be directed to be withdrawn/revoked/reviewed/cancelled and/or quashed along with the one letter of the Assistant Provident Fund Commissioner in the month of September, 2000. At the interim stage, the petitioner company obtained an interim order for not releasing a sum of Rs. 22,79,379 under an order of attachment. Such sum was lying in an account of State Bank of India itself. The interim order as above was made for a limited period. On a day when no one appeared on behalf of the petitioner in spite of repeated calls, the same was dismissed. Subsequently, upon being satisfied with, an application, the order was recalled. On the day when the application of further interim order for recalling was made the entire sum was realized by the Provident Fund Authority from the bank by the operation of the order of attachment. However, when this Court found that there is no necessity of passing any further interim order but the application can be heard along with the writ petition the same direction was given. There is no factual dispute available herein. The dispute is only a legal dispute as to whether the Assistant Provident Fund Commissioner is entitled under law to reject a scheme for which an application was made by the petitioner company under the Employees’ Pension Scheme, 1995 or not. Such order of rejection is the part and parcel of annexure M’ to the interlocutory application being dated January 28, 2001.
2. Mr. Hirak Kumar Mitter, Learned senior counsel, appearing in support of the petitioners/employers contended before this Court that the scheme which has been framed is much more beneficial than the ordinary benefit given under the Act. Mr. Partha Sarathi Sengupta intervened in this matter on behalf of all the employees and supported the stand of the employer. Therefore, both the employers and employees are happy with the scheme.
3. According to me, the Employees’ Pension Scheme, 1995 was introduced by the Central Government on November 16, 1995 by operation of Section 6-A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. It is pertinent to mention that Section 6-A speaks for Employees’ Pension Scheme. Section 6-A separates Section 6 of the Act by a non obstante clause under Section 6-A(2) of the same. Section 6 speaks about contribution by the employer at the rate of 8.33 per cent of the basic wages and the employees’ contribution shall be equal to the contribution payable by the employer and if any employee so desires, by an amount exceeding such percentage of his basic wages, dearness allowance and retaining allowance (if any), subject to the condition that the employers shall not be under an obligation to pay any contribution over and above his contribution payable under such Section. There is also a provision of enhancement up to 10 per cent in certain circumstances. The whole intention of this Court to highlight the scope and ambit of the two Sections is to give a clear picture that whenever someone will come with a proposal under the scheme as per Section 6-A there is no necessity of any further interpretation. If the amount is lower it will automatically attract Section 6 of the Act. In other words, unless and until a proposal gives room for consideration for better benefit or minimum at par with the benefit, there is no scope for making application under the scheme of 1995 as per Section 6-A of the Act. Both Mr. Mitter and Mr. Sengupta on behalf of the employers and employees contended before this Court that not only the scheme which has been proposed by the employer is nearer to the scheme framed under Section 6 but far more superior having at least 30 per cent of benefit leaving aside various relaxations.
4. Against this background, the jurisdiction of the Regional Provident Fund Commissioner has to be construed by the Court.
5. Mr. Anil Kumar Gupta appearing for such authority contended that whereas the protection of the employees for getting such amount now or in future is unknown to them, the authority being a part and parcel of beneficial piece of legislation cannot be compelled to send the matter to the appropriate Government for due consideration. Such submission was vehemently opposed by the counsel appearing for the employer and the employees saying that the authority concerned cannot proceed on a surmise when both the employer and the employees are interested to have their own scheme being much more beneficial. The Regional Provident Fund Commissioner has no jurisdiction to reject the same.
6. Since the question of jurisdiction arose herein I have travelled through the appropriate parts of the Act as well as the scheme having statutory flavour. Section 2(a) speaks about the definition of the appropriate Government. Such Section is quoted hereunder:
(a) ‘appropriate Government’ means-
(i) in relation to an establishment belonging to, or under the control of the Central Government or in relation to an establishment connected with a railway company, a major port, a mine or an oilfield or a controlled industry or in relation to an establishment having departments or branches in more than one State, the Central Government; and
(ii) in relation to any other establishment, the State Government;”.
7. Under paragraph 39 of the scheme a provision is made for exemption from its operation which is as follows:
“Exemption from the operation of the, Pension Scheme.- The appropriate Government may grant exemption to any establishment or class of establishments from the operation of this Scheme, if the employees of the establishments are either members of any other pension scheme or propose to be members of a pension scheme wherein the pensionary benefits are at par with or more favourable than the benefits provided under this Scheme. Where exemption is granted to any establishment or class of establishments under this paragraph, withdrawal benefits available to the credit of the employees of such establishment(s) under the ceased Family Pension Scheme, 1971, shall be paid, subject to the consent of the employees, to the Pension Fund of the establishment(s) so exempted. An application for exemption under this paragraph shall be presented to the Regional Provident Fund Commissioner having jurisdiction by the establishment or class of establishments together with a copy of the pension scheme of the establishment(s) and other relevant documents as may be called for by him. On receipt of such an application, the Regional Provident Fund Commissioner shall scrutinize it, obtain the recommendations of the Central Provident Fund Commissioner and submit the same to the appropriate Government for decision. Pending disposal of application for exemption under this paragraph, employers’ share of the contribution shall not be remitted to the pension fund as envisaged in sub-paragraph (1) of paragraph 3. An application for exemption presented under this paragraph shall be disposed of within a period of six months from the date of its receipt or such further time as may be extended for reasons to be recorded in writing. If the application for exemption is not disposed of within the period so specified, the exemption applied for shall be deemed to have been granted.
Explanation- For the purpose of this paragraph, the period of six months will count from the date on which the application for exemption is given in complete form to the satisfaction of the Regional Provident Fund Commissioner.”
8. From the plain reading it appears, that the appropriate Government is entitled to grant the exemption in the following manner: (a) the process is that an application for exemption shall be presented to the Regional Provident Fund Commissioner having jurisdiction with the copy of the pension scheme and relevant documents which may be called for by him; (b) he will scrutinize it, obtain recommendations of Central Provident Fund Commissioner and submit the same to the appropriate Government for decision. These are the two functions kept open for the Regional Provident Fund Commissioner. The interesting part is subsequent thereto : (a) pending disposal of application for exemption the employer’s share of contribution shall not be remitted to the pension board as per para 3(1); (b) the application shall be disposed of within six months and in case of further time the reasons are to be recorded; (c) if it is not disposed of the same shall be deemed to have been granted.
9. Mr. Gupta has very much stressed on the words ‘complete form’ in the explanation as above but according to me, six months period from the date of getting application in ‘complete form’ means the copy of the pension scheme and other relevant documents which may be called for by him for the purpose of apprising it and the cut off date can be formed for such six months from the presentation of such application. Otherwise it will be difficult for the applicant to understand what are the desirable documents required by the authority.
10. An argument made by Mr. Gupta on behalf of the Regional Provident Fund Commissioner that such authority can alone be declared as an appropriate Governmental authority for acceptance or rejection of scheme in merit. According to me, Regional Provident Fund Commissioner has no jurisdiction for recommendation which is to be done by the Central Provident Fund Commissioner alone. The basic requirement of the Regional Provident Fund Commissioner in such case is to do the administrative work and place it before its higher authority as above to get application of his quasi-judicial mind for recommendation of the matter to the appropriate Government will be the final decision-making authority. A Regional Provident Fund Commissioner has no power to reject any application for exemption in merit. In other words, such authority is not an adjudicating authority at all. There is a reason for the same. Under the law an unbiased, impartial and uninfluenced decision is prescribed which may or may not be available in case of any decision being taken by a Regional Provident Fund Commissioner, being the regional authority in whose jurisdiction the employer’s establishment situates. Element of biasness or influence may not be ruled out due to regular attachment with such office. Therefore, there should be a check and balance. This is the intention of the law-maker. There should be a checking of the documents by the Regional Commissioner but the recommendation part will be left for the Central Provident Fund Commissioner being an ex officio member of the Central Board under Section 5-A of the Act. If he recommends it will be much more easier for the appropriate Government to consider the case. It is true to say that an appropriate Government cannot have any mechanism unless and until an expert in the line is representing the case. But I am sorry to say that a Regional Provident Fund Commissioner is not such representative unless and until he proceeds with the power of delegation under the statute. This is not such a case. Therefore, the rejection part of the Regional Provident Fund Commissioner in merit is bad in law.
11. So far as the point as agitated by Mr. Gupta on behalf of the authority concerned that the Regional Provident Fund Commissioner has not committed error since the application was not made in proper form, I say even such stand cannot be acceptable by the Court. As and when the authority had gone into merit of the dispute and ultimately decided then it has to be construed that such authority has ignored the technicality or hypertechnicality about the form of the application. In deciding the matter question of hypertechnical or technical problems are standing in the way of hearing the merit but once the merit has been considered it has to be construed that the technical or hypertechnical parts have been ignored by such authority. In other words, unless technicality is ruled out, one cannot go into the merit of the case. Even as per paragraph 39 of the scheme the only power is given to Regional Provident Fund Commissioner to get a copy of the pensions scheme of the establishment and other relevant documents as may be called for by him. In the instant case, so far as the technical part is concerned, Regional Provident Fund Commissioner held that approved registered trust deed, Income-tax registration certificate and annexures ‘B’ and ‘C’ are not as per standard proforma. Although according to the petitioners the same were produced yet I cannot say that non- supply of such documents ipso facto can be valid ground of rejection because he may call upon such documents as per paragraph 39 of the scheme itself afterwards. Therefore, the ground of rejection is not the technical ground but on merit, which is so apparent that the same cannot be ignored. Hence, the decision of rejection by the Regional Provident Fund Commissioner is without jurisdiction.
12. Mr. Gupta has given very much stress upon the guidelines which speak that the same is made for the process of consideration for exemption of operation of Employees’ Pension Scheme, 1995. This Court has no knowledge as to the statutory force of such guidelines nor it has been explained by Mr. Gupta when such question arise in the Court. In any event the source of such guidelines is the scheme of 1995 and the source of the scheme is the Act, 1952. Therefore, such guidelines are only the handmaid of justice of the executives for their own internal administration. In other words when the guidelines are the child of the scheme and the scheme is the child of the Act such guidelines even having statutory force cannot override the scheme and the Act. Therefore, when the scheme prescribes the power and authority of the Regional Provident Fund Commissioner the same cannot be overreached by such authority taking advantage of such guidelines. Moreover, there is a fallacy of understanding the guidelines. Such fallacy is that the Regional Provident Fund Commissioner is entitled to scrutiny but the Central Provident Fund Commissioner is entitled to recommend the matter to the appropriate Government. The point No. 3.14 under the guidelines is given hereunder:
While scrutinising the application the following checks should be exercised:
“(a) whether the application is in the prescribed form;
(b) all supporting documents listed out in Form B are received and complete in all respects;
(c) whether the benefits compared are at par or more favourable than the Employees’ Pension Scheme, 1995 with particular reference to the provisions relating to coverage, eligibility, entitlement, pensionable salary and quantum of pension;
(d) whether the establishment, if exempted from the operations of Employees’ Provident Fund Scheme, 1952 fully complying with the conditions governing the grant of exemption.”
13. Even having such power, the Regional Provident Fund Commissioner cannot reject the application in merit because right to recommend or not to recommend lies with the Central Provident Fund Commissioner. That apart giving more opportunities before rejection is much more judicious concept. Even in our Court of law many orders which we are passing regularly are not appealable but order of rejection is appealable. The concept of placing the matter before Central Provident Fund Commissioner is much more judicious in nature.
14. Last but not the least, Mr. Gupta contended that the subject- matter of the interlocutory application as regards such scheme is altogether different from the prayers made in the main writ petition. Therefore, the prayer as made by the petitioners as regards the scheme cannot be entertained at all. I find that in the writ petition, the entire proceeding from the show-cause notice till attachment has been challenged by the petitioner. The scheme of exemption is an outcome of the main issue. If the scheme is treated to be rejected the claim of the Provident Fund authority will be established but if the scheme is to be accepted the claim of the Provident Fund authority will be rejected. Therefore, the subject of the interlocutory application is not separate from the question of the writ petition. It is to be remembered that if any cause of action in the interlocutory application is different from the original cause of action of the main writ petition the same cannot be accepted in the existing writ petition. But if the cause of action in the application is the obvious outcome in the course of the original judicial proceeding it cannot be ruled out but Court is bound to accept such cause since the governance of the Court is prevailing. When the Court is called upon its mandate by a party such Court cannot overlook or throw out any relevant question till its finality. Hence, the point as agitated by Mr. Gupta cannot be accepted.
15. Before closing the chapter I have to give answer to one incidental issue raised by Mr. Mitter and Mr. Sengupta as regards deeming effect of paragraph 39 of the Scheme, 1995 which keeps a period of six months, Particularly, as per Mr. Sengupta when the matter has been rejected in merit and the period has been given under the scheme, deeming effect will become enforceable. I have accepted all the arguments of Mr. Mitter and Mr. Sengupta made either on behalf of the employer or on behalf of the employees but I cannot accept this part for the simple reason that effectually the order is a nullity. Therefore, when the order is established as nullity it will relate back to its original position for the purpose of doing the needful. Hence, this Court cannot allow the application for exemption by giving deeming effect without finalisation of the same by the Central Provident Fund Commissioner and the appropriate Government.
16. Therefore, the order of the Regional Provident Fund Commissioner in rejecting the application is set aside. All the papers connected with the matter which are lying in the office of the Regional Provident Fund Commissioner be submitted to the Central Provident Fund Commissioner within a period of seven days from the date of the communication of the order as passed by this Court. The Central Provident Fund Commissioner will take a decision as regards recommendation to the appropriate Government within a period of one month of communication from the date of forwarding all the papers and documents by the Regional Provident Fund Commissioner as directed above. If the matter is recommended by the Central Provident Fund Commissioner to the appropriate Government, such Government will take a final decision in this respect within a period of three months from the date of such recommendation. If the appropriate Government ultimately held that the scheme as prepared will be approved and accepted in that case, and if the sum recovered by the authority from the bank under Employees’ Pension Scheme appears to be refundable the same will be refunded within a period of two weeks from the date of communication of such decision by the appropriate Government along with the interest at the rate of 18 per cent per annum upon holding it unjust enrichment by the authority. Since all the employees are supporting the exemption scheme made by the employer, they will be entitled to participate in any decision-making process to be conducted by the authority concerned.
17. Hence, with the above observation and order the writ petition as well as the interlocutory application being G.A. No. 1285 of 2003 are disposed of.
18. However, no order is passed as to costs.