Delhi Transport Corporation vs Sh.Ashok Kumar Sharma, ...
2011 Latest Caselaw 4088 Del

*                    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.

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

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

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

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.

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.

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