Viju W/O Manohar Sawle vs Secretary, Government Of India ...
2005 Latest Caselaw 284 Bom

JUDGMENT

B.R. Gavai, J.

1. Rule. Rule made returnable forthwith. Shri Sundaram, the learned counsel, waives notice on behalf of the respondent Nos. 1 to 4. Mr. Motghare, the learned counsel, waives notice on behalf of the respondent No. 5. Heard by consent.

2. The present petition has been filed by the petitioner praying for quashing and setting aside the order dated 2nd April, 2004 passed by the respondent No. 3, thereby rejecting the claim of the petitioner for her entitlement under the Employees' Pension Scheme, 1995 (hereinafter referred to as the 1995 Scheme).

3. The facts in brief giving rise to the filing of the present petition are as under :

That, the husband of the petitioner was employed with respondent No. 5 as Attendant on 1st March, 1979. Husband of the petitioner was serving with the respondent No. 5 till 31st January, 1994. He opted for Voluntary Retirement Scheme and look voluntary retirement with effect from 31st January, 1994. The husband of the petitioner withdrew his retiral benefits on 23rd August, 1994.

4. The 1995 Scheme came into effect with effect from 16th November, 1995. The husband of the petitioner expired on 13th June, 1998.

5. The petitioner applied for entitlement of family pension under the 1995 Scheme to the respondent No. 5. The respondent No. 5 forwarded the application of the petitioner to the respondent No. 4 on 30th July, 1999. The respondent No. 4 replied to the respondent No. 5 vide communication dated 31st August, 1999. It is stated in the said communication that an amount of Rs. 8,592/- was given to the deceased member as retiral benefit on 23rd August, 1994. It was directed by the said communication that the claimant should refund the same along with interest which was calculated at Rs. 4,347/-. Vide the said communication, the claimant and all minors were required to open bank account with State Bank of India, Bank of India or Punjab National Bank and to furnish new bank account number. In pursuance of the said communication, the petitioner deposited the aforesaid amount of Rs. 12,939/-. Since even after deposit of the aforesaid amount, the 1995 Scheme was not made applicable to the petitioner, the petitioner made representation to the respondent No. 5. It appears that there was certain internal communication between the respondent Nos. 3 and 4. However, vide communication dated 2nd April, 2001, the petitioner was informed by the respondent No. 3 that since the husband of the petitioner had not given option for the 1995 Scheme and he had expired on 30th June, 1998, the husband of the petitioner was not entitled for pension under the 1995 Scheme, and was, therefore, directed to take refund of the amount from the respondent No. 4. The respondent No. 4 also sent a communication dated 2nd April, 2004 to the respondent No. 5 to the said effect. The petitioner, therefore, addressed a representation to the respondent No. 1 on 12th April, 2001. It appears that the same was forwarded by the respondent No. 1 to respondent No. 4. However, vide reply dated 14th June, 2001, the petitioner was sent a communication thereby returning the claim of the petitioner. The petitioner was thereafter refunded the aforesaid amount of Rs. 12,939/- without interest on 12th April, 2003. In this set of facts, the petitioner is before this Court in the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

6. Heard Ms. Tajwar Khan, the learned counsel appointed for the petitioner, Shri Sundaram, the learned counsel for the respondent Nos. 1 to 4 and Shri Motghare, the learned counsel for the respondent No. 5.

7. Ms. Khan, the learned counsel for the petitioner, submitted that harmonious reading of provisions of Section 6A(b) read with Schedule III of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the said Act) read with paras 6(b)(c), 7(2), 17(2) and 18 of the said 1995 Scheme would reveal that the petitioner is entitled to avail the benefits under the 1995 Scheme. She submitted that since the husband of the petitioner had taken voluntary retirement between 1st April, 1993 and 15th November, 1995, the husband of the petitioner/petitioner was entitled to opt for the 1995 Scheme on refund of the benefits which were received under the earlier Scheme. She submitted that as a matter of fact, the petitioner had refunded the benefits received under the old Scheme on the demand made by respondent No. 4. She further submitted that it was incumbent upon the employer to have sought option from the petitioner's husband and since the employer had not sought option from the employee, the husband of the petitioner/petitioner cannot be denied the benefits of the 1995 Scheme. She further submitted that the said 1995 Scheme does not provide for any cut-off date and had the husband of the petitioner been alive today, he could have still opted for the 1995 Scheme. She submitted that the husband of the petitioner died in the year 1998 and had the employer informed him immediately after the 1995 Scheme came into effect, he would have given the option and the petitioner would have received the benefits under the 1995 Scheme. She submitted that since the said Act and the 1995 Scheme were enacted with an object of providing social security to the workmen and their dependents, it was necessary to interpret them in a liberal manner. She relied on the judgment of Apex Court in the case of D. S. Nakara and Ors. v. Union of India reported in AIR 1983 SC 150 and Poonamal (Smt.) etc. etc. v. Union of India and Ors. reported in (1985) 3 SCC 345.

8. Mr. Sundaram, the learned Standing Counsel for the Union of India. submitted that reading of para 6(b) read with explanation to para 2(ix) would show that since the husband of the petitioner had taken the benefits under the earlier Scheme and had not opted for the 1995 Scheme, the petitioner is not entitled for the benefit under the 1995 Scheme. Shri Sundaram submitted that if this Court holds that the petitioner is entitled to benefits under the 1995 Scheme, then the Court would be adding something in the statute which has not been provided by the Legislature. He submitted that when the intention of the Legislature is clear, it is not permissible for this Court to supply casus omissus. He relied on the judgment of the Apex Court in the case of Union of India and Anr. v. Hansoli Devi and Ors. reported in (2002) 7 SCC 273, Padma Sundara Rao (dead) and Ors. v. State of T. N. and Ors. reported in (2002) 3 SCC 533, Harbhajan Singh v. Press Council of India and Ors. reported in (2002) 3 SCC 722 and State of Orissa and Anr. v. Prativa Ghosh and Anr. reported in (2001) 10 SCC 587.

9. Having heard the learned counsel for the parties, we find that it will be necessary to refer to certain provisions of the said Act and the 1995 Scheme for appreciating the controversy involved in the petition. The relevant portion of Section 6A of the said Act reads as under :

"6A. (1) The Central Government may, by notification in the Official Gazette, frame a scheme to be called the Employees' Pension Scheme for the purpose of providing for :"

"(b) widow or widower's pension, children pension or orphan pension payable to the beneficiaries of such employees."

Relevant provisions of Schedule III reads thus:

"MATTER FOR WHICH PROVISION MAY BE MADE IN THE PENSION SCHEME"

"2. The time within which the employees who are not members of the Pension Scheme under Section 6A as it stood before the commencement of the Employees' Provident Funds and Miscellaneous Provisions (Amendment) Act, 1996 (hereinafter, in this Schedule, referred to as the amending Act) shall opt for the Pension Scheme."

Para 2(ix) reads thus :

"2(ix). "Member" means an employee who becomes a member of the Employees' Pension Fund in accordance with the provisions of this Scheme;

(Explanation : An employee shall cease to be the member of Pension Fund from the date of attaining 58 years of age or from the date of vesting admissible benefits under the Scheme, whichever is earlier.)"

Para 6 reads thus :

"6. Membership of the Employees' Pension Scheme. -- Subject to sub-paragraph (3) of paragraph 1, this Scheme shall apply to every employee;"

"(b) who has been a member of the ceased Employees' Family Pension Scheme, 1971 before the commencement of this Scheme from 16th November, 1995;

(c) who ceased to be a member of the Employees' Family Pension Scheme, 1971 between 1st April, 1993 and 15th November, 1995 and opts to exercise his option under paragraph 7."

Para 7 reads thus :

"7. Option for joining the Scheme. -- (1) Members referred to under sub-paragraph (c) of paragraph 6 who have died between 1st April, 1993 and 15th November, 1995 shall be deemed to have exercised the option of joining the Scheme on the date of his death.

(2) Members referred to in sub-paragraph (c) of paragraph 6 who are alive shall have the option to join the Scheme as per the provisions of paragraph 17 from the date of exit from the employment."

Para 17 reads thus :

"17. Payment on exercise of option. -- (1) Beneficiaries of the deceased members of Employees' Family Pension Scheme, referred to in sub-paragraph (1) of paragraph 7, shall receive higher of the benefits available under the Employees' Family Pension Scheme, 1971 and under this Scheme.

(2) Members referred to in sub-paragraph (2) of paragraph 7, shall have the option to join this Scheme by returning the amount of withdrawal benefit received, if any, together with interest at the rate of 8.5 per cent per annum from the date of payment of such withdrawal benefit and the date of exercise of the option, to receive monthly pension as per the provisions of this Scheme."

Para 18 of the said 1995 Scheme reads thus :

"18. Particulars to be supplied by the employees already employed at the time of commencement of the Employees' Pension Scheme. -- Every person who is entitled to become a member of the Employee's Pension Fund shall be asked forthwith by his employer to furnish and that person shall, on such demand, furnish to him for communication to the Commissioner particulars concerning himself and his family in the form prescribed by the Central Provident Fund Commissioner."

Thus, perusal of the aforesaid provisions would show that in view of provisions of para 6 of the 1995 Scheme, the 1995 Scheme shall apply to such of the employees who has been a member of the ceased Employees' Family Pension Scheme, 1971 (hereinafter referred to as the 1971 Scheme), before the commencement of the 1995 Scheme from 16th November, 1995. It will also apply to the persons who is ceased to be the member of the 1971 Scheme between 1st April, 1993 and 15th November, 1995 and who opts to exercise his option under paragraph 7, Sub-paragraph 1 of paragraph 7 shows that Members who have died between 1st April, 1993 and 15th November, 1995 shall be deemed to have exercised the option of joining the Scheme on the date of his death, Sub-paragraph 2 of the said paragraph shows that Members referred to in sub-paragraph (c) of paragraph 6 who are alive shall have the option to join the Scheme as per the provisions of paragraph 17 from the date of exit from the employment. Para 17 shows that Members referred to in sub-paragraph (2) of paragraph 7, shall have the option to join this Scheme by returning the amount of withdrawal benefit received, if any, together with interest at the rate of 8.5 per cent per annum from the date of payment of such withdrawal benefit and the date of exercise of the option. Perusal of para 18 of the said 1995 Scheme shows that every person who is entitled to become a member of the Employees' Pension Fund shall be asked forthwith by his employer to furnish and that person shall, on such demand, furnish to him for communication to the Commissioner particulars concerning himself and his family in the form prescribed by the Central Provident Fund Commissioner.

Clause 2 of Schedule III of the 1995 said Act requires that a cut-off date shall be prescribed within which the employees who were members of the earlier Scheme shall opt under the Pension Scheme.

10. A conjoint reading of the aforesaid provisions would, thus, show that the 1995 Scheme is automatically made applicable to all such persons who were members of the 1971 Scheme, on 16th November, 1995. It is also clear from sub-paragraph (1) of para 7 that 1995 Scheme would also be made applicable to all such members who were members of the 1971 Scheme and who had died between 1st April, 1993 and 15th November, 1995, due to the deeming provision of they having exercised the option of joining the 1995 Scheme on the date of the death.

11. Insofar as the persons who ceased to be the members of the 1971 Scheme between 1st April, 1993 to 15th April, 1995, the 1995 Scheme would be applicable to them if they opt to exercise option under para 7. Sub-paragraph (2) of para 7 would show that such members will have the option to join the Scheme as per the provision of paragraph 17 from the date of the exit from the employment. Paragraph 17 would show that if such members decide to opt for the 1995 Scheme, they will have to refund benefits received by them under the earlier Scheme along with interest @8.5% per annum from the date of withdrawal of benefit. Para 18 required the employer to ask every person who is entitled to become a member of the 1995 Scheme to furnish and that person on such demand is required to furnish to the employer for communication to the Commissioner, the particulars concerning himself and his family in the form prescribed by the Central Provident Fund Commissioner.

12. It is not disputed that as required under Clause 2 of Schedule III, no cut-off date has been prescribed for giving option to join 1995 Scheme. It is, thus, clear that if the husband of the petitioner would have been alive today, he would have been still in a position to opt for the 1995 Scheme.

13. It is clear from para 18 that it is a primary responsibility of the employer to seek particulars from the person who is entitled to become a member of 1995 Scheme and to furnish such particulars to the Commissioner. Admittedly, in the present case, husband of the petitioner has not been asked to furnish particulars by the employer. Leave aside sending any personal communication to the husband of the petitioner asking him to give particulars, the respondent No. 5 has also not published any public notice calling for such particulars from the persons entitled to the benefits of the 1995 Scheme. It is undisputed that since husband of the petitioner took voluntary retirement on 30th August, 1994 and as such he ceased to be a member of 1971 Scheme between 1st April, 1993 and 15th November, 1995. Therefore, in view of sub-paragraph (c) of para 6, be was entitled to become member of 1995 Scheme. It is on account of the failure to exercise the statutory duty enjoined upon the respondent No. 5 under para 18 of the 1995 Scheme, the husband of the petitioner who was very much alive when the said 1995 Scheme came into effect, has been deprived of opting for the said 1995 Scheme. The contention of the learned counsel for the respondent Nos. 1 to 4, placing reliance on para 2 (ix) and particularly on the explanation, that since the petitioner had taken retiral benefits on 27th August, 1994. he ceased to be member, is in our opinion, without substance. Moreover, perusal of para 6(c) would itself show that all such persons who had ceased to be the member of the 1971 Scheme between 1st April, 1993 and 15th November. 1995, were entitled to become member of the said 1995 Scheme. Had the employer of the husband of the petitioner exercised the statutory duty under para 18 of the 1995 Scheme, the husband of the petitioner would have become the member of the said 1995 Scheme and the petitioner would have been entitled to the benefits thereof. The said Act as well as the provisions of the said 1995 Scheme are enacted with an avowed object of providing social security to the retired persons and their dependents. The Division Bench of the Apex Court in the case of D. S. Nakara (cited supra) has stated the goals of the said 1995 Scheme as under:

"Let us therefore examine what are the goals that pension scheme seeks to subserve? a pension scheme consistent with available resources must provide that the pensioner would be able to live : (i) free from want, with decency, independence and self-respect, and (ii) at a standard equivalent at the pre-retirement level."

14. It is clear from para 16 of the 1995 Scheme that upon the death of husband of the petitioner, the petitioner as well as her children would have been entitled to family pension, if the husband of the petitioner would have been asked the choice to opt for the 1995 Scheme. If the submissions of the learned counsel for the respondent Nos. 1 to 4 are to be accepted, it will lead to an anomalous situation. Had the husband of the petitioner died between 1st April, 1993 and 15th November, 1995, he would have automatically been deemed to be the member of the 1995 Scheme in view of sub-paragraph (1) of para 7 of the 1995 Scheme. Had he been surviving even today, he would have been still in a position to opt for the 1995 Scheme. It is only on account of failure on the part of the employer to seek particulars from the husband of the petitioner as required under para 18, the petitioner would be deprived of the benefits under the 1995 Scheme. The said Act and 1995 Scheme framed thereunder being social legislation, we do not find that the intention of the Legislature could have been to lead to such an anomalous situation. We, therefore, find that the petitioner is entitled to the benefit under the 1995 Scheme on the condition that she deposits the amount received by her husband under 1971 Scheme.

15. It is pertinent to note that as a matter of fact, the petitioner had deposited the said amount along with interest as asked for, which was also duly received by the respondent Nos. 1 to 4, and only on the rejection of the petitioner's claim, the said amount was refunded back to the petitioner, that too after two years of rejection and without any interest thereon. Insofar as the reliance placed by the learned counsel for the respondent Nos. 1 to 4 on the case of State of Orissa (cited supra) is concerned, in our view, said case is not applicable to facts of the present case. In the case before the Apex Court, by the time, subsequent notification was issued, the petitioner's husband had already died and as such the Apex Court observed that said Scheme could not have been made applicable to the husband of the petitioner. However, in the present case, 1995 Scheme has come into effect on 16th November, 1995 and the husband of the petitioner has died much later i.e. on 13th June, 1998. In view of provision of para 6(c), since he had retired between the period 1st April, 1995 and 15th November, 1995, he was very much entitled to receive the benefits of the 1995 Scheme. However, only on account of failure of the employer, he has been deprived of the benefits of the 1995 Scheme. We find support from the observation of the Apex Court in the case of Poonamal (Smt.) etc. (cited supra) as under :

"It is not necessary to examine the concept of pension. As already held by this Court in numerous judgments that pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. Deoki Nandan Prosad v. State of Bihar, 1971 (suppl) SCR 634 : (AIR 1971 SC 1409) State of Punjab v. Iqbal Singh, (1976) 3 SCR 360 : (AIR 1975 SC 667) and D. S. Nakara v. Union of India, AIR 1983 SC 130. Where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D. S. Nakara's judgment. At the hearing of this group of matters we pointed out that since the family pension scheme has become non contributory effective from September 22, 1977 any attempt at denying its benefit to widows and dependents of Government servants who had not taken advantage of the 1964 liberalisation scheme by making or agreeing to make necessary contribution would be denial of equality to persons similarly situated and hence violative of Article 14. If widows and dependents of deceased Government servants since after September 22, 1977 would be entitled to benefits of family pension scheme without the obligation of making contribution, those widows who were denied the benefits on the ground that the Government servants having not agreed to make the contribution, could not be differently treated because that would be introducing an invidious classifications among those who would be entitled to similar treatment."

16. Insofar as the judgments cited by the learned counsel for the respondent Nos. 1 to 4 in the cases of Union of India and Anr. v. Hansoli Devi and Ors., reported in (2002) 7 SCC 273, Padma Sundara Rao (dead) and Ors. v. State of T. N. and Ors. reported in (2002) 3 SCC 533, Harbhajan Singh v. Press Council of India and Ors. reported in (2002) 3 SCC 722 and State of Orissa and Anr. v. Prativa Ghosh and Anr., reported in (2001) 10 SCC 587, are concerned, there cannot be doubt that when the intention of the Legislature is clear and unambiguous, this Court should not resort to supply cams omissus. However, in the present case, we are not providing any cams omissus to the provisions of the 1995 Scheme. Rather from interpretation of the 1995 Scheme, we find that the petitioner is entitled to the benefits of the 1995 Scheme since her husband was entitled to become its member. In that view of the matter we find that the reliance placed by the learned counsel for the respondent Nos. 1 to 4 on the aforesaid cases, is not well placed.

17. Before we part with the judgment we must appreciate the sincerity and industry on the part of Ms. Tajwar Khan, in arguing the case, though this was an appointed brief through legal aid.

18. In the result, the petition is allowed. The impugned communication dated 2nd April, 2001, passed by the respondent No. 3 is quashed and set aside. It is held that the petitioner is entitled to the benefits under the 1995 Scheme. The petitioner shall deposit the amount of Rs. 12939/- received by her husband towards the benefit under 1971 Scheme, with the respondent No. 5 within a period of one month from today. We make it clear that no further interest shall be payable by the petitioner inasmuch as she had already deposited the amount received by her husband along with interest and for no fault of her, said amount was withheld by the respondents till 12th April, 2003 without any interest, though her claim was rejected vide order dated 2nd April, 2001. The respondent No. 5 shall forward the proposal to respondent No. 4 within fifteen days from the receipt of the said amount. The respondent No. 4 thereafter shall forthwith make applicable the benefits of the 1995 Scheme to the petitioner in accordance with law.

19. Rule is made absolute in the aforesaid terms with no order as to costs.

20. The fees payable to the learned counsel appointed for the petitioner are quantified at Rs. 3,000/- which shall be paid from the Legal Aid Service Sub-Committee's Account.