Jiyajirao Cotton Mills vs B.I.F.R.

Sujoy Paul, J.

I.A. Nos. 803 of 2012 and 385 of 2013

By filing I.A. No. 803/2012 the employees as per enclosed list (from "Ishwar Krishna Tripathi to Ram Govind") (1032 in Nos.) prayed that the Provident Fund Organization (PF Organization) be directed to start, pension for these employees by treating the pay and allowances payable on 4.5.1998. The Official Liquidator (OL) has filed reply dated 12.8.2013. The PF Organization has also filed reply and stated that no relief is due to these employees.

Before dealing with the rival contentions, it is necessary to narrate certain relevant facts. Admittedly J.C. Mill was wound up on 4.5.1998. The PF Organization is paying pension to 6036 employees. 1032 employees have preferred I.A. No. 803/2012 with the prayer mentioned above. It was supported by I.A. No. 385/2013 filed by the Trade Union.

The stand of the applicants is that the PF Organization has deducted fund/contribution of 8037 employees. This includes names of 1032 employees, for whom the present I.A. is filed. By drawing attention of this Court on the report of Commissioner, Shri Trivedi, it is contended that as per his report, 7836 employees were on the rolls and this list of 7836 employees includes names of present 1032 employees. It is common ground taken by Shri A.K. Jain and Shri Vivek Jain that since the contribution of 8037 employees is already deducted by the PF Organization, they are entitled to get pension as per the relevant Pension Scheme. By drawing attention of this Court on various provisions of Pension Schemes of 1971 and 1995, it is urged that 1032 employees are eligible and are entitled to get pension.

Shri K.N. Gupta, learned Senior Counsel drew the attention of this Court on a list, which is prepared by the OL and which was submitted before the PF Organization. In turn, the PF Organization informed about certain deficiencies. The attention of this Court is drawn on the objection of PF Organization dated 29.2.2012, wherein it was mentioned that the list sent by the OL does not contain his signature, in the list although pension account numbers are given but it was not in chronological order. It is further mentioned that it is not clear as to why along with 6036 members, the list of 1032 members was not sent. Certain other information''s were also required from the OL. In turn, the OL by communication dated 22.5.2012 stated that the defects are cured, henceforth, the communication will contain the signature or OL/Competent Officer. As required, the list of 1032 employees was again sent by OL to the PF Organization, in turn, the PF Organization wrote a letter dated 1.8.2013, whereby it was informed to the OL that record is very old and process has been started to search the record. It will take some time and after getting the record, necessary information will be given. Thereafter, as canvassed by learned Senior Counsel Communication is received by the OL from the PF Organization. It is only on 28.4.2014 an affidavit is filed by PF Organization in this case, which is signed by Shri Salim Beg Mugal. In this affidavit, it is contended that as per the information received from Indore Office, the relevant record of J.C. Mill desired by OL is not available. The record of only 6036 employees is available at Gwalior Office and no other record was deposited by the employer.

It is relevant to mention here that during the course of argument, learned Counsel for the parties provided three compilations before this Court, it is urged by learned Counsel that the documents filed along with the record are again filed in these compilations and arguments were advanced on the basis of these compilations. These compilations are marked as "A", "B" and "C". Registry is required to keep these compilations in a sealed envelope along with the record.

The communication by the PF Organization dated 29.2.2012 is at page 15 of compilation "A", whereas reply of OL is at page 12 of the said compilation.

Learned Counsel for the OL submits that as per the list prepared by the Commissioner, pension can be started in favour of 1032 employees. He further submits that PF Organization has already taken contribution of 8037 employees, which includes present 1032 employees. After having taken the contribution for the entire set of employees, it is not open to the PF Organization to deny pension to the deserving employees. It is submitted that along with the list furnished by OL, the pension account number and date of membership was given to the PF Organization. No sincere efforts were made to ascertain the same.

Shri R.K. Goyal, learned Counsel for the PF Organization prayed for rejection of I.As. It is submitted that as per Para 2(f) of 1971 Scheme, the option was required to be exercised by the employees. 1032 employees have not exercised any option to become member of 1971 Scheme. The attention is also drawn on Paras 3, 4 and 6 of the said Scheme. It is submitted that the employer was required to submit series of statutory forms as per 1971 Scheme and 1995 Scheme. The employer has not paid the cheque or draft nor paid the contribution of 1032 employees, in absence of fulfilling the statutory requirements under 1971 and 1995 Schemes, the pension is not payable to the employees. He relied on Para 18 of 1971 Scheme, which talks about allotment of pension number to the pensioner. It is submitted that in absence of any allotment of pension number, no pension is payable. By placing reliance on para 15 of this Scheme, it is contended that the employer has not fulfilled the statutory duty and, therefore, 1032 employees cannot get benefit. He submits that the employees whose statutory record was provided to the PF Organization by the employer, their pension has been started.

Shri R.K. Goyal, by relying on 1995 Scheme submits that along with the scheme, there are statutory Form Nos. 1, 2, 3, 4, 6 and 7. By taking this Court to the entries of these forms, it is contended, that the employer was required to furnish information and documents in different heads. In absence of furnishing these informations, the pension cannot be quantified and paid. In nutshell, he submits that 1032 employees were neither member of 1971 Scheme nor can become member of 1995 Scheme. He also drew the attention of this Court on Paras 2, 3, 5, 6, 7, 9, 10, 11 and 12 of 1995 Scheme. It is contended that the necessary requirement as per these Paras are not fulfilled with regard to 1032 employees and, therefore, they are not entitled for the monthly pension. He also relied on the Court order dated 22.4.2009, whereby this Court directed to give Rs. 6,45,40,834/- to PF Organization in order to start revised pension to the existing employees. He submits that this order makes it crystal clear that the intention of this Court was to utilize the amount of contribution for the purpose of grant of revised pension to the employees, who were already receiving pension. Putting it differently, Shri Goyal submits that the employees, who were already getting pension, became entitled to get revised pension on the strength of the order dated 22.4.2009. Since this order was not put to test and has attained finality, no pension beyond revised pension for existing pensioners can be granted by this Court. By relying on the inspection report dated 11.4.2000, it is contended that the salary component of the year 1992 is considered in the inspection report. On a specific query from the Bench whether there exists any material to show that salary component of 1992 was considered in this inspection report; Shri Goyal submits that if number of employees and their contribution is calculated, it will come to the amount which is mentioned in the order dated 22.4.2009 and this amount can be achieved only, if the salary component of 1992 is taken into account.

No other point is pressed by the parties.

I have heard learned Counsel for the parties and perused the record in the light of submissions.

This Court on 9.1.2003 considered the OLR 16/0 filed by the OL. By order dated 9.1.2008, Shri Trivedi, retired District Judge was appointed as Commissioner to scrutinize the claim of the employees. The relevant portion of this order reads as under:--

"Official liquidator has filed OL.R. No. 16/0 whereby he has prayed that some retired District Judge be appointed for scrutinizing the claims of the labours as well as other secured creditors. None for the parties has objection for appointment of Shri S.S. Trivedi, retired District Judge residing at Sharda Vihar, Gwalior to scrutinize the claims.

Official liquidator shall place all the claim received by him from the workers and the secured creditors before Shri Trivedi within a period of three weeks from today. Shri Trivedi shall scrutinize the claims and submit his report before this Court. If required, Shri Trivedi can also issue notice to a particular claimant, if he wants to do for decision of his case. It is further made clear that while deciding the claims, Shri Trivedi will keep in mind that if there are decrees passed by some competent Court, then he will decide the claim accordingly and in accordance with the requirement of Company Law. If any worker has not filed any claim so far, he may file his claim before the official liquidator within a period of one month from today. The official liquidator shall forward his claim to Shri Trivedi within a period of fifteen days from the date of receipt of the claim. This exercise shall be completed by Shri Trivedi within a period of six months."

Thereafter, matter was again considered by this Court on 13.2.2008. By this order, two persons were provided to the Commissioner to undertake aforesaid exercise. The Commissioner prepared a report and along with the report filed two lists, which are marked as Annexures "A" and "B". Annexure "A" filed by the Commissioner contains the names of 7836 employees. The list, Annexure "A" is filed in Compilation "B" from page 190 to 400. The Commissioner has giving finding in 13 columns. The heads of these columns are as under:--

I.A. No. 5497/2007 was filed by PF Organization under section 11 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for brevity, the "PF Act"). The caption of this application reads as under--

"Application under section 11 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 for direction to the official liquidator for payment of the amount of contribution under the Employees Pension Scheme, 1995 including the amount of interest and damages to the applicant organization."

The Commissioner''s report is taken into account by this Court on 8.4.2009. This Court opined as under on the said date:--

"I.A. No. 14863/06 I.A. No. 16813/06 & I.A. No. 16814/06.

............The report of the Commissioner is received. Hence these applications are disposed of as these workmen shall get their dues only in accordance with the report submitted by the Commissioner......"

(Emphasis Supplied)

A bare perusal of this finding shows that this Court in no uncertain terms made it clear that the workmen shall get dues as per the report of the Commissioner. There after, this Court passed the order dated 22.4.2009, whereby permitting the PF Organization to utilize Rs. 6,45,40,834/- for the purpose of granting revised pension.

The pivotal question is whether 1032 employees are entitled to get the pension?

To determine this aspect, it is apt to quote certain provisions of 1971 Scheme. Paras 1(3) reads as under.--

"(3) Subject to the provisions of section 16 and sub-section (1-A) of section 17 of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, this Scheme shall apply to the employees of all factories and other establishments to which the said Act applies or is applied under sub-section (3), or sub-section (4) of section 1 or section 3 thereof."

Para 2(f) of the Scheme reads as under:--

"2(f) ''reckonable service'' means service rendered by a member of the Family Pension Fund in respect of which contributions are payable under this Scheme and includes any period of service in respect of which no wages are drawn by such member on account of temporary closure of the establishment, strike, lock-out or leave without pay, or for any other reason, of a similar nature or otherwise, and in respect of which contributions (both the member''s and employer''s shares) are payable by diversion from his Provident Fund Account as provided in subparagraph (2-A) of Paragraph 9 of his Scheme and also includes any period of service in respect of which wages are drawn but no contributions are payable in terms of sub-paragraph (4) of Paragraph 9 and which shall be deemed to have been paid for purposes of Paragraphs 28, 31 and 32 of this Scheme:

Provided that no period of service, in respect of which no wages are drawn by a member,--

(i) after the name of the member has been struck off from the rolls of the employer of the member; or

(ii) xx xx xx

(iii) after there ceases to be any amount the fund or in the provident fund of an exempted establishment, as the case may be, lying to the credit of the member concerned, shall be treated as reckonable service."

Para 3 of the Scheme reads as under:--

"3. Membership of the Family Pension Fund.--Subject to sub-paragraph (3) of Paragraph 1, this Scheme shall apply to every employee--

(a) who becomes a member of the Employees'' Provident Fund or of Provident Funds of factories and other establishments exempted under section 17 of the Act on or after the 1st day of March, 1971:

(b) who has been a member of the Employees Provident Fund or Provident Fund of factories and other establishments exempted under section 17 of the Act immediately before the commencement of this Scheme and opts to exercise his option under Paragraph 4:

Provided that an employee who attains the age of more than 59 years on the date on which he would, but for this proviso, have become eligible for membership or have been required to become a member of this Scheme shall not be eligible for membership under this Scheme."

Para 9 of the Scheme reads as under:--

"9. Family Pension Fund.--(1) From and out of the contributions payable by the employer and the employees in each month under section 6 of the Act a part of the contribution, representing 1-1/6 per cent of the employee''s pay along with an equivalent amount of 1-1/6 per cent from and out of the employer''s contribution shall be remitted by the employer to the Family Pension Fund by a separate Bank Draft or cheque on the account of Family Pension Fund contribution in such manner as may be specified in this behalf by the Commissioner. The cost of the remittance, if any, shall be borne by the employer.

Relevant part of Para 10 of the Scheme reads as under:--

"10. Payment of contribution.--(1) The employer shall, in the first instance, pay both the contribution payable, to the Family Pension Fund by himself and also, on behalf of the member of the Family Pension Fund employed by him directly or by or through a contractor, the contribution payable to the Family Pension Fund by such member."

Section 17(1-A) of PF Act makes it clear that there is no exemption for the purpose of pension. The exemption, if any, is only to the extent of provident fund. If the Scheme of 1971 is examined, it will be clear that it is mandatory in nature. It is apt to mention here that 1032 employees have been engaged after 1.3.1971. Thus, in the opinion of this Court, they will be covered by Para 3(a) of 1971, Scheme. The intention of scheme-maker since beginning was to cover each and every workman of the industry. Para 26 of 1952 Scheme also makes it clear that it is applicable to every employer.

It is interesting to mention here that the P.F. Organization filed an application on the basis of inspection report and showed that it quantified PF contribution of 8037 employees. The contribution was permitted to be given, by the Company Court to the PF Organization. Admittedly, the said contribution of 8037 employees was already received by the PF Organization. The employees determined by the Commissioner for payment of pension were 6036 in number. Thus, for 2001 employees (8037-6036) they have received contribution but are not paying pension. This is not in dispute that as per the inspection report, the PF contribution was demanded for the period 1.7.1992 to 4.5.1998. The said amount is already paid to the PF Organization. If PF Organization has not Remanded any contribution-before 1.7.1992, it can be safely concluded that the contribution amount for the employees before 1.7.1992 was not due/payable. They demanded and received the amount from 1.7.1997 to 4.5.1998 for 8037 employees.

Apart from this, page 193 of compilation "A" (inspection report) contains following finding:--

"The squad has visited the establishment for inspection of records for calculation of dues under, Family Pension Scheme, 1971. Employees Pension Scheme 1995 and inspection charges under EPF Scheme, 1952 and EDLI Scheme 1976."

(Emphasis supplied)

This finding shows that the records were inspected for the purpose of determining the dues of eligible employees who are entitled under 1971 Scheme and 1995 Scheme.'' This report further shows that employees'' share as well employer''s share was determined/quantified by the inspection team.

Page 209 of compilation "A" (Application for direction to the OL for depositing FPS/EPS contribution, filed by PF organization) shows that they have taken a specific stand that contributions towards PPF were received by the PF organization for the employees of J.C. Mills upto June, 1992. No contributions were received by them thereafter. Para 3 of this application reads as under--

"(3)That, the contribution toward E.P.F. Were received in the office of the applicant upto June, 1992 and no contribution under the scheme thereafter."

(Emphasis supplied)

In para 6 of this application, it is averred by PF organization that the winding up order was passed on 4.5.1998 and as per section 445 of the Companies Act, the employees will be deemed to be in employment from the date of closure i.e., 28.4.1992 to the date of winding up 4.5.1998.

Para 6 of 1995 Scheme reads as under--

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

(a) who on or after the 16 November, 1995 becomes a member of the Employees'' Provident Funds Scheme, 1952 or of the Provider Funds of the factories and other establishment exempted by the appropriate Government under section 17 of the Act or in whose case exemption has been granted under paragraph 27 or 27-A of the Employees'' Provident Funds Scheme, 1952, from the date of such membership;

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

As per Para 6 aforesaid, it is clear that the scheme is applicable to every employee who was the member of either 1952 Scheme or of Provident Fund of factories or has been a member of Pension Scheme of 1971. The PF contribution/employee and employer share for the employees have been determined and received by PF organization after the period 1992. It is admitted by them as quoted above that prior to 92 they have received the contribution of the employees. Thus, it can be conclusively held that 1032 employees were covered under 1971 Scheme and their PF deduction was made by PF organization. Thus, they are entitled to be treated as member of 1995 Pension Scheme.

Aforesaid analysis further shows that once contribution is received upto year 1998, PF Organization treated the entire strength of employees, (8037 in Nos.) as covered under 1971 Scheme and 1995 Scheme.

In the present case, as pointed out by Shri K.N. Gupta, learned Senior Counsel, the record is not available which can throw light whether the statutory forms were filled up by the employer as per 1971 and 1995 Schemes and whether those forms were supplied to the PF Organization. The question is whether in absence of those forms, 1032 employees can be deprived from the benefit of the pension?

As per section 13 of the PF Act, the Inspectors have wide powers to inspect the record, take photocopy and make search-for the purpose of enforcement of the Act and Schemes made thereunder. Sections 13(1)(2)(b)(c) and (2-A) are reproduced for ready reference:--

"13. Inspectors.--(1) The appropriate Government may, by notification in the Official Gazette, appoint such persons as it thinks fit to be Inspectors for the purposes of this Act/the Schemes/the Pension Schemes or the Insurance Scheme, and may define their jurisdiction.

(2) Any Inspector appointed under sub-section (1) may, for the purpose of inquiring into the correctness of any information furnished, in connection with this Act or with any Scheme or the Insurance Scheme or for the purpose of ascertaining whether any of the provisions of this Act or of any Scheme of the Insurance Scheme have been complied with in respect of an establishment to which any Scheme or the Insurance. Scheme applies for the purpose of ascertaining whether the provisions of this Act or any Scheme or the Insurance Scheme are applicable to any establishment to which the Scheme or the Insurance Scheme has not been applied or for the purpose of determining whether the conditions subject to which exemption was granted under section 17 are being complied with by the employer in relation to any exempted establishment--

(a) xxx xxx xxx

(b) at any reasonable time and with such assistance, if any, as he may think fit, enter and search any establishment or any premises connected therewith and require any one found in charge thereof to produce before him for examination any documents, books, registers and other documents relating to the employment of persons or the payment of wages in the establishment.

(c) examine, with respect to any matter relevant to any of the purposes aforesaid, the employer or any contractor from whom any amount is recoverable under section 8-A, his agent or servant or any other person found in charge of the establishment or any premises connected therewith or whom the Inspector has reasonable cause to believe to be or to have been, an employee in the establishment.

(2-A) Any Inspector appointed under sub-section (1) may, for the purpose of inquiring into the, correctness of any information furnished in connection with the Pension Scheme or for the purpose of ascertaining whether any of the provisions of this Act or of the Pension Scheme have been complied with in respect of an establishment to which the Pension Scheme applies, exercise all or any of the powers conferred on him under clause (a), clause (b) clause (c) of clause (d) of sub-section (2)."

In the opinion of this Court, if the Inspectors have inspected the premises of the industry and prepared the inspection report, there is no manner of doubt that such report is prepared on the basis of the relevant statutory record/Registers prepared by the employer. On the basis of this record, the inspection report has quantified the number of employees as 8037. The PF contribution of Rs. 6,45,40,834/- is already received by PF Organization. At a later point of time, the Commissioner Shri Trivedi quantified the employees as 7836. It is common ground of Shri A.K. Jain and Shri Vivek Jain that names of 1032 employees are already mentioned in the list prepared by the Commissioner containing the names of 7836 employees and, therefore, this list should be treated as authenticated list for the purpose of grant of pension.

Para 1(3) of 1995 Scheme is reproduced as under:--

"(3) Subject to the provisions of section 16 of Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), this Scheme shall apply to the employees of all factories and other establishments to which the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952) applies or is applied under sub-section (3) or sub-section (4) of section 1 or section 3 thereof."

Para 2(iv) of 1995 Scheme reads as under:--

(iv) "contributory service" means the period of "actual service" rendered by a member for which the contributions to the fund have been received or are receivable."

Para 2(vi) reads as under:--

""existing member" means an existing employee who is a member of the Employees'' Family Pension Scheme, 1971."

Para 2(xv) defines "pensionable service", which reads as under:--

"(xv) "pensionable service" means the service rendered by the member for which contributions have been received or are receivable."

Para 4 of 1995 Scheme reads as under:--

"4. Payment of contribution.--(1) The employer shall pay the contribution payable to the Employees'' Pension Fund in respect of each member of the Employees'' Pension Fund employed by him directly or through a contractor.

(2) It shall be the responsibility of the principal employer to pay the contributions payable to the Employees'' Pension Fund by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor;

Provided that the Central Government shall pay the contribution payable to the Employees'' Pension Fund in respect of an employee who is a person with disability under the Persons with Disabilities (Equal Opportunities. Protection of Rights and Full Participation) Act, 1995, (1 of 1996) and under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental ''Retardation and Multiple Disabilities Act, 1999 (44 of 1999) respectively, up to a maximum period of three years from the date of commencement of membership of the Fund."

Para 6 of 1995 Scheme is also relevant which is already reproduced in para 22 of this order.

Para 10 talks about determination of ''pensionable service'' whereas Para 11 talks about determination of ''pensionable salary''. The formula for the purpose of determining the monthly member''s pension is in Para 12. The formula reads as under:--

"Monthly member''s pension = Pensionable salary x Pensionable service/70

Paragraph 16(1) of 1995 Scheme reads as under:--

"16. Benefits to the family on the death of a member.--(1) Pension to the Family shall be admissible from the date following the date of death of the member, if the member dies--

(a) while in service, provided that, at least one month''s contribution has been paid into the Employees'' Provident Fund, or

(b) after the date of exit, but before attaining the age of 58 years, from the employment having rendered service entitling him/her to monthly member''s pension but before the commencement of pension payment, or

(c) after commencement of payment of the monthly member''s pension."

Note.--The cases where a member has rendered less than 10 years eligible service on the date of exit but has retained the membership of the Pension Fund, and dies before - attaining the age of 58 years, shall be regulated under sub-paragraph (8) of paragraph 12."

I do not see any merit in the contention of Shri R.K. Goyal, learned Counsel for the PF Organization, that since in the Court order dated 22.4.2009 there was no direction to start pension for the present 1032 employees, no direction can be issued. A simple reading of said order of Company Court makes it crystal clear that the question of claim/entitlement of these 1032 employees was not at all under consideration before the Court. The Court had no occasion to deal with this aspect. Thus, that order cannot be read in the manner suggested by Shri Goyal nor it can be as impediment for deciding entitlement of 1032 employees.

The matter may be examined from yet another angle. The PF Organization after having received contribution from 1.7.1992 to 4.5.1993 for all 8037 employees cannot-take "U" turn and submit that this ''Contribution is not for present 1032 employees. 8037 employees was the total strength employees working on the date of inspection, i.e., 11.4.2000. The factory was wound up on 4.5.1998 and since 1032 employees were on the rolls on the date of winding up of the industry, their names must be treated as included in the list of 8037 employees, for whom contribution is already received by PF Organization. In any case, the list prepared by the Commissioner Shri Trivedi must be treated as authentic list for the purpose of deciding the dues of, the workmen. Thus, if names of 1032 employees are included in the list prepared by the Commissioner (Annexure ''A''), such employees shall be entitled for pension.

Though in the peculiar facts of this case, the documents/statutory forms filed by the employer may not be available but the fact remains that the PF Organization has treated them as employees and obtained their contribution. Thus, as per the Schemes of 1971 and 1995, 1032 employees must be treated to be eligible employees for the purpose of pension scheme provided their names find place in the list prepared by the Commissioner (Annexure A'').

During the course of argument, learned Counsel for the PF Organization has express inability of PF Organization to determine monthly member''s pension. It is submitted that in absence, of relevant record, it is not possible to determine the date of birth/age, length of service amount of salary drawn etc. in absence of these data, the formula cannot be made applicable and monthly pension cannot be determined.

Para 10 of 1995 Scheme talks about pensionable service of the member. This is with reference to the contribution received or receivable. The PF Organization has already received the contribution. Para 11 defines pensionable salary, which is average monthly pay drawn during the contributory period of service in the span of 12 months preceding the date of exit from the membership of the Employees'' Pension Fund. It is relevant to mention here that the Commissioner has prepared Annexure ''A'' and it contains the date of appointment, total service rendered, amount of provident fund, total salary paid with certain allowances etc. Thus, the necessary ingredients for the purpose of determining pensionable salary are very much available in the report or the Commissioner. So far the date of birth/age is concerned, Shri Vivek Jain has filed the circular of PF Organization dated 12.12.2006. This circular deals with all possible contingencies for the purpose of determination of the age.

During the course of hearing of present I.As., this Court directed the OL to inform whether any record is available which can throw light on the date of birth/age of the employees. Shri K.N. Gupta, senior Counsel filed a small compilation containing declaration and nomination forms of certain employees. In these forms, either age or date of birth of the employees, is shown. A careful reading of circular dated 12.12.2006 aforesaid makes it clear that PF Organization is equipped with the enabling provision to determine the age of the employees. Thus, on the basis of contribution received by the PF Organization, the report of Commissioner and date of birth/age of employees available with the OL, necessary ingredients for applying formula for the purpose of determining pension are satisfied. For this purpose, the OL. needs to take necessary pains to prepare a detailed list of the employees containing their date of birth/age and furnish it to the PF Organization with a view to help the PF Organization to apply the formula as per Para 12 of 1995 Scheme.

In the peculiar facts and circumstances of this case, I am unable to agree with the contention of Shri R.K. Goyal that because relevant statutory forms were either not filled up or submitted by the employer or not available with PF Organization, the employees are not entitled to get pension. At the cost of repetition, in my opinion, after having inspected the relevant and statutory record of the industry, the PF Organization itself quantified 8037 employees and took their contribution. These employees must be treated as eligible employees for the purpose of grant of pension under 1995 Scheme.

On the basis of aforesaid analysis, these applications are allowed with following directions:--

(i) Shri A.K. Jain may add a column in the list of 1032 employees by indicating their serial number in the list of Commissioner''s report (Shri Trivedi''s report). This may be done within a week in order to provide momentum to the entire exercise required to be done. He shall supply copy of this list to learned Counsel for PF Organization and to the OL.

(ii) The OL shall scrutinize the record of 1032 employees and prepare that by reflecting their date of birth/age. This list shall be prepared within three weeks and shall be supplied to the PF Organization.

(iii) The PF Organization shall calculate/determine the pension of 1032 employees as on 4.5.1998 by treating the relevant factors available on the said date. In the event of any difficulty in determining the age of employees, the PF Organization shall take assistance of its circular dated 12.12.2006. It is made clear that 1032 employees shall be entitled for pension only if their names are included in the list Annexure-A, prepared by the Commissioner Shri Trivedi. It will be open to the PF Organization to ascertain whether any of those employees is already getting pension, in that event no pension shall be payable to them. It will be open to the OL and-PF Organization to take necessary steps to identify the real person, who is entitled for pension. However, it is made clear that no availability of prescribed form by the employer or any other paper formality will not be the reason to deny the pension to the persons whose names are included in Annexure A'' aforesaid.

(iv) The PF Organization after receiving list by the OL aforesaid shall undertake exercise on its part and start regular pension to the employees within sixty days. Arrears of pension from due date shall be paid within six months therefrom.

The applications (I.A. Nos. 803/12 and 385/13) are allowed to the extent indicated above.

Nobody else is present to press other I.As. List the matter after ensuing summer vacation. The Registry is directed to comply with the directions mentioned in para 6 of this order.

CC as per rules.