R.S.A. No. 3733 of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 3733 of 2008 (O&M)
Date of Decision : 21.01.2009
The Regional Provident Fund Commissioner, Karnal
....Appellant
Versus
Gurnam Singh & others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present : Mr. Kamal Sehgal, Advocate
for the appellant.
.....
MAHESH GROVER, J.
This regular second appeal which is barred by a delay of
21 days in filing and 22 days in re-filing is directed against the
judgments of the learned trial Court dated 7.6.2006 and that of the
learned first Appellate Court dated 21.5.2008.
The plaintiff/respondent No.1 filed a suit seeking
declaration to the effect that he is entitled to all the benefits of
monthly pension under Family Pension Scheme which has been
withheld illegally by the appellant pertaining to his account No.HR-
5832/8. It was pleaded by him that the aforesaid benefits have to be
granted to him for the period of service which he had rendered. The
demand of the appellant for depositing a sum of Rs.24,370/- was also
R.S.A. No. 3733 of 2008 (O&M) -2-
assailed by him and prayed that the said demand be declared as
illegal. A prayer for mandatory injunction was also made to direct the
appellant to unconditionally release all the benefits due to him. The
plaintiff/respondent No.1 pleaded that he was appointed as General
Attendant at Sainik Parivar Shiksha Kender Va Bal Bhawan,
Chhachhrauli on 14.12.1973 and he rendered his services till
31.1.2002 as Chowkidar. Prior to the joining of his service with
respondent No.2, the plaintiff was in the Indian Army. He prayed for
his entitlement of monthly pension under the scheme.
The appellant and respondents No.2 and 3 denied the claim
of the plaintiff/respondent No.1 and relied on para 10 of the
Employees Pension Scheme, 1995 (hereinafter referred to as ‘the
scheme’), which is reproduced hereinafter, to contend that the
respondent/plaintiff was not covered in the scheme. It was pleaded
that the scheme under the Employees’ Provident Funds and
Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the
Act’) was taken up by the Regional Provident Fund Commissioner,
Haryana in the year 1990, who informed that the scheme would be
applicable from 1.8.1992. Respondents No.2 and 3 deposited their
share of the contribution w.e.f. August 1982 to March 1990. The
employees including the plaintiff were asked to deposit their share of
EPF for the same period but they expressed their inability to deposit
it. The plaintiff/respondent, however, started contributing his share
w.e.f. April 1990.
The learned trial Court framed the following issues :-
1. Whether the plaintiff is entitled to all the benefits as
R.S.A. No. 3733 of 2008 (O&M) -3-
prayed? OPP
2. Whether the family pension scheme is illegally
withheld by the defendants as alleged?OPP
3. Whether the demand of the defendants from the
plaintiff for depositing the sum of Rs.24,370/- is
illegal, null and void? OPP
4. Whether the plaintiff is entitled for the relief of
mandatory injunction as prayed ?OPP
5. Whether the present suit is not maintainable?OPD
6. Relief.
Upon appraisal of the evidence before it, the learned trial
Court came to the conclusion that the plaintiff/respondent was
entitled to the benefits of the scheme. While determining the findings
on issues No.1 to 4 it was noticed by the learned trial Court that vide
letter Ex.D-3 the appellant had made the scheme applicable from
1.4.1982 and vide letter Ex.P-1 the plaintiff/respondent and other
employees who had expressed their inability to deposit the EPF w.e.f.
1982 onwards were informed about their EPF account and a request
had been made to the appellant that the concerned department must
deposit the share of the concerned employees in EPF account. It was
also noticed that concededly the EPF had been released in favour of
the plaintiff/respondent and the sole dispute was with regard to the
family pension @ Rs.330/- to which the entitlement was claimed from
the date of superannuation, i.e. 31.1.2002.
The claim of the plaintiff/respondent was denied only on
the ground that he had attained the age of 58 years in the year 2000
R.S.A. No. 3733 of 2008 (O&M) -4-
and on the said date he had not completed the eligible service of 10
years as per Rule 12-C of the scheme. The contribution made by the
plaintiff/respondent w.e.f. 1990 was accepted by the appellant
without any protest. He was given account number for the benefit of
the Family Pension Scheme. At no point of time the
plaintiff/respondent was informed that he was not entitled to become
a member of the scheme. In fact, a specific waiver had been made by
the appellant regarding the share of the employees which was
required to be deposited w.e.f. August 1982. In this view of the
matter, the appellant is clearly precluded from depriving the
plaintiff/respondent of his entitlement to the family pension.
Learned counsel for the appellant has placed reliance on
Para 10 of the scheme which reads as below :-
10. Determination of pensionable service.– (1) The
pensionable service of the member shall be determined
with reference to the contributions received or receivable
on his behalf in the Employees’ Pension Fund.
(2) In the case of the member who superannuates on
attaining the age of 58 years, and/or who has rendered 20
years pensionable service or more, his pensionable service
shall be increased by adding a weightage of 2 years.”
It was contended by him that in accordance with the
provisions of Para 10 since the plaintiff/respondent neither completed
20 years pensionable service nor did he complete the requisite 10
years to enable him to be entitled to the benefit of the scheme, the
judgments of the Courts below are erroneous.
R.S.A. No. 3733 of 2008 (O&M) -5-
I am afraid the contention of the learned counsel for the
appellant is misplaced. Para 10 contemplates the grant of the benefit
to a member who superannuates on attaining the age of 58 years,
and/or who has rendered 20 years pensionable service or more, which
shall be increased by adding a weightage of two years. Pensionable
service has been defined in the scheme to mean as follows :-
“Pensionable service” means the service rendered by the
member for which contributions have been received or are
receivable.”
Concededly, as per the showing of the learned counsel for
the appellant if an employee had completed 10 years of service and
contributed to the scheme, he was entitled to the benefit of the family
pension. It is the case of the appellant that the plaintiff/respondent
had contributed to the scheme for 9 years, therefore, if the benefit of
Para 10 is awarded to the appellant by giving weightage of 2 years, he
completes 11 years and becomes entitled to the benefit of the scheme.
That apart, the appellant is estopped by its conduct on account of the
fact that it had initially waived off the period from 1982 to 1990
enabling the employees to become members of the scheme without
depositing the amount.
In view of the aforesaid discussion, the findings recorded
by both the Courts below cannot be faulted with. The appeal is
dismissed on merit as well as on the point of delay.
21.1.2009 (MAHESH GROVER)
JUDGE
dss