T. Venkatachalam vs Secretary to Government Ministry of Labour Government of India, Assistant Provident Fund Commissioner Employees Provident Fund Organization (HO) and Assistant Provident Fund Commissioner Employees Provident Fund Organization Sub-Regional Office

K. Chandru, J.—Heard the arguments of Ms. M. Santhini, learned Counsel for the Petitioner; Mr. S. Vaidyanathan, learned Counsel for the

first Respondent; and Mr. K. Gunasekaran, learned Counsel for Respondents 2 and 3.

The Petitioner has filed the present Writ Petition challenging a letter sent by the second Respondent, communicating the decisions of the first

Respondent, vide letter dated 17.11.2000. By the impugned communication, the second Respondent informed the Petitioner that the Central

Government has rejected the proposal for permitting option to the non-optee Family Pension Fund, 1971, to members, who left between

01.04.1993 and 15.11.1995 and withdrew the Provident Fund money standing to their credit, there being coverage for the purpose of Pension

Scheme. The Writ Petition was admitted on 22.03.2006. On notice from this Court, on behalf of the Respondents, counter affidavit dated

08.12.2008 was filed.

2.1 The facts leading to the filing of the Writ Petition are as follows:

(i) The Petitioner was an employee working in TANSI Engineering Works, Karur. He was a member of the Provident Fund w.e.f. 01.10.1967.

He retired from service on 31.05.1994. After his retirement, the entire Provident Fund standing to his credit was settled in his favour during July,

1994.

(ii) The Central Government introduced a pensionary benefit scheme in addition to provident fund, known as, Employees'' Family Pension Scheme,

1971. The said Scheme was an optional one for the provident fund subscribers. An option was given to the existing provident fund members to

avail the said Pension Scheme, which was introduced w.e.f. 01.03.1971. The Petitioner for reasons best known to him, did not exercise his option.

(iii) Subsequently, the Central Government issued a statutory notification in G.S.R. No. 500, dated 03.06.1988, permitting the employees, who

have not opted for the Pension Scheme to opt for the said Scheme, on condition that they should make contribution, which would have been

diverted from the Provident Fund to the Employees Family Pension Fund. Even after such extended option, the Petitioner (iv) Subsequently, the

Central Government introduced a new Pension Scheme, known as, Employees'' Pension Scheme, 1995. While Employees'' Family Pension

Scheme, 1971, was optional for the existing members, Employees'' Pension Scheme, 1995, was made compulsory for the new entrants. In respect

of the persons, who have not opted in 1971, they can chose to avail the new Employees'' Pension Scheme, 1995. In paragraph No. 7 of the

Employees'' Pension Scheme, 1995, the option was also given for persons, who have died between 01.04.1993 to 15.11.1995, deemed to have

opted for the new Scheme. Under paragraph No. 6 of the Employees'' Pension Scheme, 1995, it was also indicated that the person, who ceased

to be the member of the Employees'' Family Pension Scheme, 1971, between 01.04.1993 and 15.11.1995, should exercise his option to come

over to the new Scheme; that was also permitted, subject to the condition of payment of the deficit contribution.

(v) The case of the Petitioner is that he does not fall either under Paragraph No. 6 or Paragraph No. 7 of the Employees'' Pension Scheme, 1995.

According to him, he sent a letter dated 24.09.1997 beyond the option period and requested his coverage. He was informed by the third

Respondent-Employees'' Provident Fund Organization, by a communication dated 03.10.1997 that since there was no amendment made under the

Scheme, the request cannot be considered. Subsequently, the Petitioner was once again informed that several applications in this regard were

made to the Central Government and the opinion of the Central Government is awaited and suitable action will be taken after the opinion is

received from the Central Government. At this stage, the Petitioner sent a representation, dated 19.12.1998, asking for permission to join the new

Scheme by relaxing the period of exercising such option. It is pursuant to the said representation, the impugned communication came to be issued.

The contention raised by the learned Counsel for the Petitioner was that the Pension Scheme is a Labour Welfare Scheme and it cannot be

made inapplicable to the Petitioner by the action of the first Respondent. The contention that he was not a member of Employees'' Family Pension

Scheme, 1971, cannot stand in the way of the Petitioner exercising his option. Since, the pension is a beneficiary Scheme, the Respondents cannot

brush aside the request of the Petitioner. The learned Counsel for the Petitioner also drew the attention of this Court to Paragraph No. 7 of the

Employees'' Pension Scheme, 1995.

In the counter affidavit filed by the Respondents, it was stated that after retirement, the Petitioner was settled the entire amount and he

automatically ceased to be the member of the Employees'' Provident Fund and therefore, the question of exercising his option retrospectively to

come under the Employees'' Pension Scheme, 1995, would not arise. Under Paragraph 41 of the Employees'' Pension Scheme, 1995, if any doubt

arises the decision of the Central Government is final and it is only because of that the opinion of the Central Government was sought for and the

Central Government also negatived the claim and in the absence of any statutory right in favour of the Petitioner, the question of extending option,

would not arise.

In the light of the rival contentions, it has to be seen, whether the Petitioner has made out any case for entertaining the Writ Petition. Unlike the

Pension Scheme available to the Government employees, the provident fund and other connected benefits are given based upon the subscriptions

made by the employee and the employer. The Scheme relating to pension is statutorily covered and the employee, who likes to exercise the option

to join the Scheme was offered enough time and now, the Petitioner cannot seek for extended option, to exercise his option for joining the

Scheme, which does not now exist in his favour, after retiring from service and after getting his Provident Fund account settled. In the light of the

above, there being no enforceable right in favour of the Petitioner, this Writ Petition is misconceived. Hence, this Writ Petition is dismissed. There

shall be no order as to costs.