Calcutta High Court (Appellete Side)
Regional Provident Fund ... vs Narendra Nath Mondal & Ors on 30 March, 2023
Item Nos. 1 & 2.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 30.03.2023
DELIVERED ON: 30.03.2023
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 311 of 2023
With
I.A. No.CAN 1 of 2023
With
I.A. No.CAN 2 of 2023
Regional Provident Fund Commissioner.
Vs.
Narendra Nath Mondal & Ors.
And
M.A.T. 312 of 2023
With
I.A. No.CAN 1 of 2023
With
I.A. No.CAN 2 of 2023
Regional Provident Fund Commissioner.
Vs.
Subhas Majhi & Ors.
Appearance:-
Mr. Anil Kumar Gupta .... for the appellants (in both appeals)
Mr. Arnab Ray ... for respondent nos.5 and 6.
2
Mr. Rajesh Kumar Shah .... for the Union of India.
Mr. Debabrata Saha Roy,
Mr. Indranath Mitra,
Mr. Pingal Bhattacharyya,
Mr. Subhankar Das,
Mr. Neil Basu,
Mr. Sankha Biswas ... for the respondents / writ petitioners.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. Since the subject-matter of disputes in both these appeals
are common, both the matters are taken up and heard analogously
and decided by this common judgment and order.
Re: I.A. No.CAN 1 of 2023 (in MAT 311 of 2023) &
I.A. No.CAN 1 of 2023 (in MAT 312 of 2023)
2. These are the applications to condone the delay of 30 days
in filing the instant appeals.
3. We have heard Mr. Anil Kumar Gupta, learned counsel
appearing for the appellants and Mr. Debabrata Saha Roy, learned
counsel appearing for the respondents/writ petitioners.
4. We are satisfied with the reasons assigned in the affidavit
filed in support of the applications. Accordingly, the delay in
filing the instant appeals is condoned.
5. The applications for condonation of delay being I.A. No.CAN
1 of 2023 (in MAT 311 of 2023) & I.A. No.CAN 1 of 2023 (in MAT
312 of 2023) are allowed.
6. For the purpose of convenience of discussion, we take up
MAT 311 of 2023.
7. This intra-Court appeal filed by the Regional Provident
Fund Commissioner is directed against the order dated 19 th
December, 2022 in WPA 21070 of 2022. The said writ petition was
filed by the respondents herein praying for a direction upon the
appellant to release the monthly pension to them based on the
revised rates, which was extended to the respondents / writ
petitioners.
8. The contention of the appellant before the learned Single
Bench was that the respondents / writ petitioners did not
exercise their option in terms of paragraph 11(3) of the
relevant scheme and reference was made to the notification dated
26th April, 2021 and it was submitted that there is a marked
difference between the conditions in the notification and
paragraph 11(3) of the said scheme and no option on the basis
thereof could be exercised by the writ petitioners. Reference
was also made to the judgment of the Hon'ble Division Bench of
this Court in FMA 3090 of 2015 dated 4 th April, 2016, which was
an appeal filed by the Central Provident Fund Commissioner
against an order passed in an earlier writ petition filed by the
respondents / writ petitioners in W.P.2381(W) of 2014 dated 20th
March, 2014. It was further contended that the option exercised
by the writ petitioners under Section 11(4) of the said scheme
was beyond the time specified in the said scheme and the same
was not accepted by the provident fund authorities. Further, it
was contended that the pension payment order directing disbursal
of higher pension was withdrawn since the matter was pending
before the Hon'ble Supreme Court at the relevant time and as of
now, in the light of the decision in The Employees Provident
Fund Organisation & Anr. ETC - Versus - Sunil Kumar B. & Ors.
ETC reported in 2022 SCC OnLine SC 1521, the matter stands
resolved.
9. The respondents / writ petitioners contended before the
learned Writ Court that the writ petitioners had exercised
option, which was duly forwarded by the employer to the
appellant / organisation and in this regard, referred to the
letter dated 16th July, 2015 addressed to the Provident Fund
Commissioner. Further, it was contended that all option forms
including that of the writ petitioners were duly forwarded to
the authorities, which was acknowledged by the authorities and
therefore, they are bound to adhere to the communication issued
by the West Bengal State Co-operative Agriculture and Rural
Development Bank Limited. The learned writ Court upon hearing
the appellant and taking note of the submission, took note of
the factual position by referring to the affidavit filed by the
Regional Provident Fund Commissioner, which was the 4th
respondent in the writ petition, wherein it has been stated that
option form has been signed by the writ petitioners on 29 th
April, 2011 and the said option was exercised in terms of
paragraph 11(3) proviso of the said scheme. Further, the learned
writ Court on facts notes that the writ petitioners once again
after omission of paragraph 11(3) proviso of the scheme and
after the new paragraph 11(4) was introduced, once again jointly
along with the employer namely, the West Bengal State Co-
operative Agriculture and Rural Development Bank Limited
exercised the option opting for higher pension.
10. The learned writ Court noted that the factum of receipt of
the option form under paragraph 11(4) of the scheme by letter
dated 16th July 2015 was not denied by the appellant/organisation
in their affidavit in opposition. The contention of the
appellant was that the option was exercised beyond the statutory
period of six months with effect from 1 st September, 2014 and the
same cannot be considered as option within the meaning of
paragraph 11(4) of the scheme. The learned writ Court taking
note of the submission made on behalf of the
appellant/organisation noted that the appellant/organisation has
acted based on the said option exercised by the writ petitioners
claiming higher pension in terms of paragraph 11(4) of the
scheme and not only the writ petitioners were directed to make
payment of the differential amount on account of contributions
payable by the writ petitioners at 1.16 per cent on the salary
exceeding Rs. 15,000/- as an additional contribution from and
out of the contributions payable by the writ petitioners for
each month under the provisions of the said scheme.
11. The learned writ Court noted that the writ petitioners have
deposited a sum of Rs. 2,31,251/- and Rs. 4,26,175/-
respectively. Furthermore, the learned writ Court noted that the
appellant/organisation has not denied the receipt of the
differential amount, which was paid by the writ petitioners.
However, the appellant/organisation had been continuously
harping on the issue that the option exercised in terms of
paragraph 11(4) of the said scheme was deemed to be irregular,
cannot be accepted. Thus, taking note of the option exercised by
the writ petitioners dated 16th July, 2015, the writ Court came
to the conclusion that such option cannot be ignored.
Furthermore, in the decision of the Hon'ble Supreme Court in
Sunil Kumar B. & Ors. ETC (supra) the Hon'ble Supreme Court
extended the time to exercise option under paragraph 11(4) by a
further period of 4 months and noting that the writ petitioners
along with their employer namely the Bank had exercised such an
option in terms of paragraph 11(4) of the scheme and more
particularly when the writ petitioners were directed to deposit
the additional contribution in terms of paragraph 11(4),
therefore, the writ Court held that the appellant/organistion
cannot turn around and non suit the writ petitioners stating
that they have not approached them with the requisite
application in terms of the liberty granted by the Hon'ble
Division Bench in F.M.A. 3090 of 2015.
12. Thus, we find that the learned single Bench rightly
directed the appellant/organisation to re-compute the pensionary
benefits payable to the writ petitioners by treating the option
exercised by them under paragraph 11(4) as valid and release the
appropriate monthly pension at a higher rate along with arrears
as may be found due by issuing revised pension payment order.
13. Thus, the appellant has not made out any ground to
interfere with the order passed by the learned single Bench.
Accordingly, the appeals fail and are dismissed.
14. However, the time for compliance of the order passed by the
learned single Bench is extended by a period of 3 months from
the date of receipt of server copy of this judgment and order.
15. There shall be no order as to costs.
16. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
