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Judgment
Petitioner, by way of this writ petition, has prayed that a
direction or order in the nature of mandamus be issued to the
respondents to release the balance amount of Rs.Two Lac withheld
in CP Fund to the petitioner alongwith interest and to furnish
details of month-wise remittance to CPF Account and grant penal
interest on the amount of CP Fund in view of the delay in payment
of the same.
Brief facts stated by the petitioner are that he joined the
respondent-Food Corporation of India (FCI) as an Assistant Grade
III (M) in Rajasthan Region on 09/11/1970 and took voluntary
retirement w.e.f. 30/09/2004. It is his case that he submitted
application for finalization of payment of CP Funds as he was a
CPF Account holder, bearing CPF Account No.21926. The
application was forwarded on 04/12/2004 to the Joint Director
(CPF) and it is his case that the amount was released upto 90%
only on 30/03/2005. He made representation for release of the
balance amount and a legal notice was also issued. The directions
were also issued by the Chairman-cum-Managing Director to
release the CPF amount of the petitioner and thereafter the
respondent No.2-Executive Director, CPF Trust released the part
amount of balance of the CPF Fund to the tune of only Rs. 1.57 lac
and withheld about Rs.Two lac against FPS 1971 and EPS 1995
contributions. The petitioner submits that he was never a member
of the Employees Pension Scheme, 1995 while the respondents
have treated him as a member of Employees Pension Scheme,
1995. The petitioner submits that as per Circular dt.17/02/2004,
the CPF beneficiaries, who were not covered by the Family Pension
Scheme, were given an option for opting for Employees Pension
Scheme, 1995 w.e.f. 01/03/1971 and exercised their option upto
31/03/2004 but the petitioner had never been member of the
Family Pension Scheme, 1971 nor he had opted for Employees
Pension Scheme, 1995 and therefore, the amount of Rs.2 lac
under the said account could not have been withheld.
So far as the respondents are concerned, they have stated
that the final payment of CP fund was not made to the petitioner
as the amount of family pension contribution was to be adjusted
from the CP fund amount of the petitioner as per Regulations and
this was informed to the petitioner too. It is further asserted that
the Scheme of EPS, 1995 was applicable to all the employees who
were compulsorily members of the FPS, 1971 from the date of
applicability of the FPS Scheme, 1971 i.e. October, 1971 and thus,
there was no requirement of giving option by the petitioner under
the EPS, 1995 as he was already a member of the EPS Scheme,
1971. The deductions, therefore, under the said account were
rightly made.
Learned counsel for the petitioner submits that firstly, the
Employees Family Pension Scheme, 1971 came into effect from
01st March, 1971 while the petitioner joined on 09/11/1971.
During his entire period of service from 1971 to 2004, he did not
make a single contribution to the FPS, 1971. He has also invited
attention of this Court to Paragraphs 4 and 4A of the Scheme of
1971 which reads as under:-
"4. Option for joining this scheme:- (1) Every employee who is a member of the Employees'' Provident Fund or of Provident Funds of factories and other establishment exempted under Section 17 of the Act, immediately before the commencement of this Scheme, shall have the option to join this Scheme.
(2) The option referred to in sub-paragraph (1) shall be exercised in Form 1 within a period six months from the 1st day of March, 1971.
[(2-A) Persons employed in seasonal factories or seasonal establishments may exercise in Form 1ithe option referred to in sub-paragraph (1) on or before the 30th day of April, 1972.
(2-B) Persons employed in factories and establishments which were lying closed as on the date this Scheme applied to them or which may have closed before the date or the extended date stipulated for exercise of option expired may exercise in Form 1 the option referred to in sub-paragraph (1)-
(a) where such factories or establishments were reopened after the 30th September, 1972 and before the commencement of the Employees'' Family Pension (Amendment) Scheme, 1975, within three months of such commencement ; and
(b) where such factories or establishments were reopened after the commencement of the Employees'' Family Pension (Amendment) Scheme, 1975, within three months of such reopening.
(2-C) Employees referred to in sub-paragraph (1), who were out of employment till the expiry of the stipulated date for exercise of option referred to in sub-paragraph (2) may also exercise the option in Form 1 on or before the 30th November, 1972
Provided that such factory or establishment. shall have to establish to the satisfaction of the Commissioner the date of re-opening of the factory or the establishment.
(3) It shall be the duty of every employer to get the option referred to in sub-paragraph (1) exercised by every member to whom the option is given within the time specified in sub-paragraph (2).
4-A. Option for joining the Scheme in cases of belated compliance of the statutory provisions.-
(1) Every employee who is enrolled on or after the 1st day of March, 1971, as a member of the Employees'' Provident Fund or of Provident Funds of factories and other establishments exempted under Section 17 of the Act from a date prior to the 1st day of March, 1971 on account of belated compliance of the statutory provisions by the employer either through an omission or otherwise for the whole establishment or in the case of any individual employee shall also have the option to join this Scheme.
(2) The option referred to in sub-paragraph (1) shall be exercised in Form 1 within a period of 3 months from the date on which the employer recovers the first Provident Fund contribution in respect of such employee or employees, as the case may be, provided that in respect of such employees in whose respect the first Provident Fund contribution has been already recovered, the option shall be exercised within a period of 3 months from the date this amendment comes into force.
(3) It shall be the duty of every employer to get the option referred to in sub-paragraph (I) exercised by every member to whom the option is given within the time specified in sub-paragraph (2)"
Secondly, it has been also averred that the aforesaid
paragraph was inserted vide notification dt.28/08/1973 and an
option was required to be obtained from the petitioner for
membership latest by 28/09/1973 but such an option was not
obtained from him and as per para 6B of the Scheme of 1995, he
could not have been treated as member of the Scheme of 1995.
The amount, therefore, has been forcibly retained. It is further
stated that the petitioner has also not been given the benefit of
FPS, 1971 or EPS, 1995 which itself shows that he was never a
member and the amount has been wrongfully withheld.
Having heard counsel for both the parties, this Court finds
that no document has been placed on record by the respondents
to show that the petitioner was ever a member of the FPS, 1971.
The calculation sheet (Annex. R/1 & R/2) placed on record, only
lays down the manner in which the statement of account has been
dealt with of the petitioner. However, admittedly the amount has
been withheld of the petitioner in the garb that he was a member
of FPS, 1971 and later on member of the EPS, 1995. Considering
the specific averment made by the petitioner and also taking into
consideration Para 4 & 4A of the FPS, 1971, as quoted herein
above, this Court is satisfied that the petitioner was never a
member of the FPS, 1971 or member of EPS, 1995.
In such circumstances, keeping in view the fact that the
amount has been withheld for a considerable long period and the
same comes within the ambit of Article 300A of the Constitution of
India being personal property of the petitioner, interest at the
rate, which was prevailing on fixed deposits in the banks in the
year when the petitioner retired namely; 2004, shall be paid to
the petitioner by the respondents treating as if the amount was
lying in fixed deposit with the respondents. The amount shall be
now released within a period of three months from the date the
certified copy of this order is submitted in their office.
It goes without saying that if the order is not complied with,
the petitioner shall be free to initiate contempt proceedings
consequence whereof shall follow.
The writ petition stands allowed in the terms as indicated
above.