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Judgment
Honourable Mr. Justice K. Chandru
Heard the arguments of Mr.R.Lawrence, learned counsel appearing for the petitioners in both the Writ Petitions and Mr.M.Imthias, learned
counsel appearing for the Food Corporation of India and Mr.K.Gunasekar, learned Additional Central Government Standing Counsel appearing
for the Central Provident Fund Commissioner. Both the Writ Petitions arise out of the order passed by the Central Government Industrial Tribunal
- cum - Labour Court, Chennai in C.C.P.Nos.2 of 2001 and 3 of 2001. By the impugned order dated 14.3.2007, the CGIT - cum - Labour
Court dismissed the claim petitions filed by the petitioners seeking for pension from the Food Corporation of India, (FCI). The Labour Court held
that the petition u/s 33 C (2) of the Industrial Disputes Act is inappropriate and the Court cannot go into the contested claim of the petitioners in
the absence of any legal or enforceable right.
Writ Petition No. 26488 of 2007 was admitted on 20.10.2010. Writ Petition Petition No. 31404 of 2007 was admitted on 14.9.2011. On
notice from this Court, the Food Corporation of India has filed a counter affidavit dated 18.10.2010. On behalf of the second respondent, the
Central Provident Fund Commissioner has filed a counter affidavit dated 20.02.2012.
The claim of the petitioners before the Labour Court was that they are the legal heirs of the workmen of the Food Corporation of India and
entitled to get pension for the services rendered by them.
On notice sent by the CGIT - cum - Labour Court, Food Corporation of India filed a counter stating that the family pension, which are available
only when a worker died in harness as per the Family Pension Scheme under the Employees Provident Fund Act. Hence, the worker is not eligible
for pension. Even in the counter affidavit filed before this Court, in the case of one Kasi, whose legal heirs have filed a claim petition in C.C.P. No.
3 of 2001, similar stand was taken. It is stated that terminal benefits were paid to the worker at the time of retirement and the worker died on
4.9.1980, three years after voluntary retirement. Therefore the question of his getting family pension will not arise.
In the counter affidavit filed by the Provident Fund Department, in paragraph No. 10, it was stated as follows:
It is submitted that if the fact so as observed by the Hon''ble Central Government Labour Court as per the Provisions of the erstwhile
Employees'' Family Pension Scheme, 1971, the Family members of the deceased subscriber are only eligible for Family Pension if the subscriber
dies while on duty/service and contributing to the family pension Fund. As such in this case the member Shri.Kali left service on 30.08.1986 and
subsequently died on 04.09.1990 and the petitioners are not eligible to receive Family Pension under erstwhile Employees'' Family Pension
Scheme 1971. On this score alone the petition has become infructuous and liable to be dismissed in limini
Therefore, the only question that has to be decided is when there is a serious dispute regarding the entitlement of the petitioners, whether a
petition u/s 33 C (2) is maintainable. A petition u/s 33 C (2) is available for a worker or his legal heirs to claim any monetary dues from the
employer.
In the present case, there is no monetary dues claim from the employer. On the other hand, pension is claimed under the Employees Provident
Fund cum pension scheme. Therefore, if there is any remedy, it is only against the Department controlling the Provident Fund. The Provident Fund
Act itself provides for remedies for such dispute and the Regional Provident Fund Commissioner can always decide the question of removing all
doubts in terms of para 26(b) of the Employees Provident Fund Scheme on the question of entitlement to become a member of the scheme in
respect of Provident Fund. Similarly in respect of pension, under Rule 8 of the Employees'' Pension Scheme, 1995, it is stated that if any doubt
arise, the employee is entitled to become a member of the pension scheme, the same shall be referred to the Regional Provident Fund
Commissioner, whose decision would become final. Therefore, when the petitioner is aggrieved by non-payment of pension by the Provident Fund
Department, his claim is only against the Department and not against the employer.
In the present case, the employer has remitted the amount with the Provident Fund Department, who has authority to consider the same. Further
the Supreme Court has already held that in respect of Employees'' Provident Fund, if any deficiency of service is found, the Consumer Court
constituted under the Consumer Protection Act has got power to go into the Act vide its judgment in the case of Regional Provident Fund
Commissioner Vs. Shiv Kumar Joshi,
Therefore, the only question is that in the absence of any claim against the employer, whether the petitioner can make the Provident Fund
Department as a party and claim some relief against the Department in a petition u/s 33 C (2) of the Industrial Disputes Act. Since the Provident
Fund Department is not the employer of the petitioners, such a petition is not maintainable u/s 33 C (2). In the absence of any pre-existing right
accrued to the worker, even maintainability of Section 33 C (2) is doubtful. Though Mr.R.Lawrence, learned counsel appearing for the petitioners
cited a judgment of the Supreme Court in the case of The The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., , such judgment is really
against the proposition made by the petitioners. In that case, the Supreme Court held that it is only in case of a claim based upon a settlement or
under Chapter VA, the question of maintainability of Section 33C(2) will arise. It is not clear as to how such a judgment is relevant especially in the
context that the Provident Fund authorities, who are also arrayed as parties before the Labour Court, have clearly stated that the question of
entitlement for family pension, in the case of a subscriber dies while in service, is available and in the case of a person, who retired from service
voluntarily and thereafter dies, the question of family pension is not contemplated. Under the said circumstance, there is no case to interfere with
the impugned award passed by the CGIT - cum - Labour Court. Accordingly, both the Writ Petitions stand dismissed. No costs.