* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.7661/2010
% Date of Decision: 23.08.2011
Delhi Transport Corporation .... Petitioner
Through Ms.Avnish Ahlawat and Ms.Urvashi
Malhotra, Advocates.
Versus
Sh.Ashok Kumar Sharma, P.T.No.338 .... Respondent
Through Respondent in person.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
* CM No.3755/2011 The respondent, who appears in person, does not press this application at this stage.
Dismissed as not pressed.
WP(C) 7661 of 2010 Page 1 of 6 CM No.3953/2011 This is an application by the respondent/applicant for release of the employer's share of Provident Fund standing in the credit of the respondent with upto date interest.
The applicant has contended that the non applicant has challenged the order dated 1st July, 2010 passed in O.A No.1592/2009 by the Central Administrative Tribunal, Principal Bench, New Delhi titled as 'Ashok Kumar Sharma P.T No.338 v. Delhi Transport Corporation' allowing the original application of the respondent/applicant and setting aside the order dated 29th April, 2009 passed by the Chairman-cum-Managing Director, dismissing the respondent from the service. The Tribunal, however, gave liberty to the petitioner to reconsider the matter by following a fresh procedure and to pass a fresh order, if so advised.
The order dated 1st July, 2010 setting aside the dismissal of the respondent/applicant was stayed by this Court by order dated 16th November, 2010 till the modification or vacation of the said stay order.
The applicant has contended that the Provident Fund of the employee including the management share cannot be forfeited by the petitioner/non applicant in the absence of any provisions in the EPF and Miscellaneous Provisions Act (1952) or under any other regulations WP(C) 7661 of 2010 Page 2 of 6 namely DTC Employee Provident Fund Regulations of the petitioner- corporation.
The applicant asserted that he sought information under the Right to Information Act, 2005 as to under which rule/regulation the management share of Provident Fund of the applicant could be forfeited or withheld. In reply to the query raised by the respondent/applicant, a reply dated 26th November, 2009 was received by him stipulating therein that there is no provision to forfeit the management's share of the Provident Fund standing to the credit of any employee in the EPF Rule/Regulation except in the case of a person charged with the offence of murder. The reply of the petitioner, however, also stipulated that employer's share of provident fund in respect of respondent was forfeited by DTC Board Resolution No.14/2009 dated 29th April, 2009.
In the circumstances, the respondent/applicant has contended that the petitioner could not forfeit the employer share of Provident Fund of the applicant's as there is no provision or regulation and the order dated 29th April, 2009 is illegal and not sustainable in law and in the circumstances the respondent/applicant is entitled to be paid the employer's share of Provident Fund standing to his credit.
In reply to the application filed by the petitioner/non-applicant, it is also stated that the respondent has almost taken 90% of the Provident Fund except the 10% of the employer's share lying in his WP(C) 7661 of 2010 Page 3 of 6 credit. According to the petitioner, the respondent has taken Rs.7,47,600/- on 8th May, 2008. From the said amount the share of the respondent is Rs.1,14,100/- and the employer's share is Rs.6,33,500/- with interest. The petitioner has also contended that another sum of Rs.39,721/- which is the balance of 10% of his own share with interest had also been released to the respondent/applicant in October, 2009 and in the credit of the respondent as on 31st March, 2009 a sum of Rs.2,32,249/- against balance 10% employer's share with interest remained, which was forfeited in compliance of DTC Board Resolution bearing No. 14/2009 dated 29th April, 2009. The petitioner/non- applicant, however, has not denied the plea of the respondent/applicant that there is no provision under the EPF and Misc.Provisions Act, 1952 or DTC Employees Provident Fund Regulation entitling the petitioner to forfeit the share of the respondent or to forfeit and withhold the employer's share of Provident Fund.
This Court has heard the learned counsel for the parties in detail. This is not disputed that in the reply to the query raised by the respondent/applicant under the Right to Information Act, 2005 about regulation/provision under EPF and Misc.Provisions Act, 1952 or DTC Employee Provident Fund Regulations entitling the petitioner to forfeit the Provident Fund share of the respondent or the employer's share, it was categorically stated that there is no provision to forfeit management shares of Provident Fund standing to the credit of any employee in the WP(C) 7661 of 2010 Page 4 of 6 EPF rule/regulations except in case of a person charged with the offence of murder. This is not denied by the learned counsel for the petitioner that the respondent has not been charged with the offence of murder. In the circumstances, there is no provision to forfeit the Provident Fund amount of the respondent, nor the share of the respondent or the employer's share. This has not been disputed by the petitioner that the amounts as indicated hereinabove, have already been released in favour of respondent and as on 31st March, 2009 a sum of Rs.2,32,249/- against balance 10% employer's share with interest is still in the credit of the respondent.
In the circumstances, the application is to be allowed and the respondent is entitled for release of employer's share with interest lying in his credit with the petitioner.
For the foregoing reasons the application is allowed. The petitioner is directed to release the employer's share of the Provident Fund standing to the credit of the respondent in accordance with rules and regulations after taking into consideration the amount already released to the respondent. The respondent has also undertaken that in case the writ petition is allowed and it is held that the petitioner was entitled to forfeit the amount of the Provident Fund of the respondent, then in that case the respondent shall refund the Provident Fund along with interest to the petitioner. With these observations, the application is disposed of.
WP(C) 7661 of 2010 Page 5 of 6 W.P(C) No.7661/2010 and CM No.19919/2010 List on 19th October, 2011.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
August 23, 2011.
'k' WP(C) 7661 of 2010 Page 6 of 6