JUDGMENT
A.M. Khanwilkar, J.
1. This writ petition under Article 226 of the Constitution of India, seeks to challenge the orders dated 23rd March. 1990 and dated 3rd August, 1990 passed by the Commissioner, Regional Provident Fund. The Petitioner further prays for a direction to the Regional Provident Fund Commissioner to pay to the Petitioner every monthly regularly and thereafter family pension which may be admissible to her as per schedule and table given under the Family Pension Funds Scheme, 1971 including the equal contribution by the State and Central Government and by the employer together with interest as may be admissible under the said Scheme.
2. The Petitioner’s husband joined the services of Indian Dyestuff Industries Ltd, after coming into force of Family Pension Scheme. 1971. The said scheme came into force with effect from 1.3.1971. It is the Petitioner’s case that since the date of joining the services, the employer was deducting contribution towards Provident Fund from the salary of her husband under Section 6 of Employees Provident Funds and Family Pension Fund Act, 1952. It is not in dispute that amount towards contribution of Provident Fund was being deducted from the salary of the Petitioner’s husband till July, 1987. Petitioner’s husband died on 7.7.1989. Notwithstanding the deductions so made the Petitioner was not paid family pension. The Petitioner therefore made representations in this behalf to the concerned Authorities. The Authorities by the impugned orders informed the Petitioner that she was not entitled for family pension. The stand taken on behalf of the Respondents is that the family pension scheme introduced in the year 1971 ceased to operate as the same was struck down by the High Court in Writ Petition No.451 of 1980, decided on 25.6.1987. According to the Respondents, consequent to the said decision of this Court, on and from July. 1987 they stopped deductions from the salary of the employees. The stand taken by the Respondents that, there has been no deductions since July. 1987, is not seriously disputed by the Petitioner. The other reason indicated by the Respondents to Justify the impugned action is that the Petitioner’s husband did not exercise his option to opt for the family pension scheme after July, 1987 till he died in harness on 7.7.1989. In other words, it is contended that no contribution has been made towards family pension since July, 1987 and as the concerned employee has not exercised the option for family pension scheme, the Petitioner was not entitled for any benefit under the said scheme.
3. The learned Counsel for the Petitioner on the other hand contends that since the Petitioner’s husband has not exercised option to opt out of the family pension scheme, it should be presumed that he continued under the said scheme for which reason the Petitioner is entitled for the benefits under the said scheme. According to the Petitioner, when Petitioner’s husband Joined the services, at the relevant time, the family pension scheme was compulsory and her husband was member of the said scheme. It is contended that since he was already a member of the
said scheme prior to 1987, he automatically continued under the said scheme even thereafter, unless he had expressly opted out of the family pension scheme.
4. We have considered the rival submissions. It is not possible to countenance that the Petitioner’s husband continued to be governed by the family pension scheme of 1971, notwithstanding the said scheme having ceased to operate from July, 1987 in view of the decision of this Court m Mafatlal Croup Staff Association, Bombay and Ors. v. Regional Commissioner, Provident Fund, Maharashtra and Goa and Ors… This Court was called upon to consider the validity of paras 3(a) and (b) of the said scheme. This Court held that so much of the scheme that compels an employee to Join the scheme was ultra vires. This Court went on to observe that para 3(b) will have to be read as “(b) who is a member of the Employees’ Provident Fund or of Provident Funds of factories and other establishments exempted under section 17 oftheAct and opts to exercise his option under paragraph 4.” Besides taking this view, this Court further observed that, no deduction can be made for the Family Pension Scheme unless the employee opts to join the same. In other words, this Court authoritatively held that no deduction can be made towards the said scheme unless the employee concerned expressly exercises option to Join the scheme. The consequences of such a direction is that the scheme would operate only in respect of those employees who have expressly consented and opted to join the scheme and not otherwise.
5. In the present case, there is no dispute that no deduction was made from the salary of Petitioner’s husband towards contribution of family pension since July, 1987. This was in keeping with the law declared by this Court in the aforesaid Judgment. Besides this, the Petitioner has not been able to demonstrate from the record that her husband had expressly given option in writing or otherwise exercising his option to join the scheme. In the circumstances, the authorities were justified in drawing inference that the Petitioner’s husband had not joined the scheme, in view of the observations made by this Court in the aforesaid Judgment. It is not possible for us to accept the submission advanced on behalf of the Petitioner that since the Petitioner did not expressly inform to opt out of scheme it should be presumed that he continued to be governed by the scheme. This argument clearly overlooks the observations made by this Court in the aforesaid judgment. In other words, it is not possible for this Court to presume that the Petitioner’s husband continued to be governed by the Family Pension Scheme, aforesaid judgment of this Court notwithstanding.
6. In the circumstances we find no merits in this writ petition and the same deserves to be dismissed. We order accordingly.
7. Rule is discharged. No order as to costs.