Calcutta High Court (Appellete Side)
Smt. Kamala Mistry @ Mangala Das vs Union Of India & Ors on 4 May, 2022
10
04.05.2022
Ct. No.23
pg.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
WPA 1355 of 2022
Smt. Kamala Mistry @ Mangala Das
Vs.
Union of India & Ors.
Ms. Sonam Basu
Ms. Punam Basu
... For the petitioner
Mr. Sauvik Nandy
... For Union of India
Mr. Anil Kumar Gupta
... For the respondents no.2, 3 & 4
Mr. Jatinder Singh Dhatt
... For the Liquidator
Affidavit of service filed in Court today is taken on
record.
The petitioner claims to be the widow of Ram
Charan Das also known as Ram Chandra Mistry, a former
employee of Hindustan Paper Corporation Limited (in
liquidation). The petitioner says that as the widow, she was
receiving family pension under the Employees' Provident
Fund Scheme, 1995. The said family pension has been
suddenly stopped without any reason. The petitioner has
made a demand for justice on 25th February, 2021, yet the
family pension has not been started.
Although the Company is in liquidation, but in
view of the provisions of Section 36 read with Section 53 of
the Insolvency and Bankruptcy Code, 2016 (in short
"IBC"), the family pension issue is not a subject before the
IBC or can be included in the Corporate Insolvency
Resolution Process (in short "CIRP"). This fact is also
clarified by the Hon'ble Supreme Court in its judgment
delivered on 19th April, 2022 in Civil Appeal No.5910 of
2019 (Sunil Kumar Jain & Ors. v. Sundaresh Bhatt &
Ors.). This being the legal position, the issue of family
pension to be given to the petitioner requires no
consideration either under CIRP or by the forum
constituted under IBC.
On behalf of the Regional Provident Fund
Commissioner, being the respondents no.2, 3 and 4, it is
submitted that in the Form No.10D, the declaration was
that Mangla Das is the wife of the deceased employee, Ram
Charan Das. The Pension Payment Order (in short "PPO")
was issued in the name of Mangla Das and she was
receiving the same in her bank account disclosed with the
Employees' Provident Fund Organisation. The family
pension, however, could not be given post 2018 for failure
on the part of Mangla Das in submitting the Life
Certificate. It is further submitted by the respondents no.2
to 4 that unless the Life Certificate is furnished, the said
respondents have no obligation to credit the family pension
in the account of Mangla Das. That apart and in any event,
the petitioner claims herself to be Smt. Kamala Mistry, also
known as Mangla Das. There is, as such, a dispute
whether Kamala Mistry and Mangla Das is self and the
same person since change of name by the widow after the
death of her husband, the employee, is unusual. Unless
cogent evidence is produced to demonstrate that Kamala
Mistry and Mangla Das is self and the same person, it is
also not possible for the Regional Provident Fund authority
to disburse the family pension to the petitioner.
The petitioner in counter submits that necessary
documents, including an affidavit affirmed before the
competent First Class Magistrate declaring that Kamala
Mistry and Mangla Das are the selfsame person have been
submitted before the Regional Provident Fund authority.
Despite the same, the issue of disbursing family pension to
the petitioner remains unresolved.
On behalf of the Liquidator of Hindustan Paper
Corporation Limited, it is submitted that the Liquidator
has no role to play in the instant matter as the same
relates to family pension which is excluded from the
purview of IBC and CIRP in view of the provisions of
Section 36 read with Section 53 of IBC which is also
supported by the ratio laid down in the judgment of Sunil
Kumar Jain (supra).
In the aforesaid facts and circumstances, I direct
the respondents no.3 and 4 to inform the petitioner within
20th May, 2022 the documents which are necessary for the
respondent no.4 to process and disburse the family
pension to the petitioner in view of the dispute as to
whether Kamala Mistry and Mangla Das are the selfsame
person and non-submission of Life Certificate.
On receiving the communication as to the
documents required to be submitted, the petitioner shall
submit only those documents contained in the list which
have not been submitted as yet. This exercise shall be
completed by the petitioner by 7th June, 2022.
In the event the petitioner furnishes the requisite
documents within the time frame, the claim of the
petitioner for family pension as the widow of late Ram
Charan Das also known as Ram Chandra Mistry shall be
considered and decided by the respondent no.4 by 20th
July, 2022 after affording the petitioner a reasonable
opportunity of hearing through a reasoned order.
In the event the respondents no.3 and 4 are unable
to provide the details within 20th May, 2022, the petitioner
will be at liberty to mention this matter.
The parties, including the respondents no.3 and 4,
shall act on the basis of a server copy of this order without
insisting upon production of a certified copy thereof.
Nothing further remains to be adjudicated in this
writ petition. The same is disposed of accordingly without
any order as to costs.
Since I have not called for any affidavits,
allegations made in the writ petition are deemed to have
not been admitted.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Arindam Mukherjee, J.)
