AI Structured Summary
Not yet generated for this judgment
Judgment
Dama Seshadri Naidu, J.—This is an issue concerning the entitlement of the Writ Petitioner to pensionary benefits. He is said to have worked and retired from the 4th respondent Corporation, a moribund organization on the verge of extinction, as has been submitted by the learned Standing counsel for the 4th respondent Corporation.
Shorn of extraneous particulars, the facts in brief are that the petitioner initially joined in the service of the 4th respondent Corporation on 01.05.1983 and later on 29.10.1999, retired from service on his attaining the age of superannuation. Soon thereafter, he kept on representing to the 2nd and 3rd respondents, the authorities of the Employees'' Provident Fund Organisation, to process his application and sanction him the pensionary benefits.
Though the authorities initially through Exts. P3 to P6 returned the application of the petitioner on certain technical grounds of non-compliance with statutory requirements, eventually, through Ext. P8, they refused the claim of the petitioner holding that the petitioner did not complete 10 years of service, in as much as he had break in service and that he had to pay an amount of Rs. 3630/- to be entitled to the pensionary benefits. Aggrieved thereby, the petitioner has approached this Court by filing the present Writ Petition.
In the above factual background, the learned counsel for the petitioner has strenuously contended that the initial rejection on the part of the respondent authorities was on flimsy technical grounds. On the issue of non-completion of 10 years, the learned counsel for the petitioner has drawn the attention of this Court to paragraph 2 (e) of the Employees'' Provident Funds Scheme, 1952, which deals with "continuous service". The learned counsel has also drawn the attention of this Court to Paragraph 16A of the Employees'' Pension Scheme, 1995. Eventually, he has contended that if there is any default in payment of the contribution, it shall be made good by the employer and the respondent authorities cannot take recourse to, much less, insist on, the petitioner to pay the said amount which is allegedly due to the Provident Fund Organization, so that the petitioner would be entitled to the pensionary benefit.
The learned counsel has also pointed out that after filing of the Writ Petition, the 2nd and 3rd respondents once again addressed a communication in Ext. R3(a) dated 02.06.2011 unequivocally declaring that the petitioner is entitled to the pensionary benefits and that he shall re-submit his application in Form-10 D. In this regard, the learned counsel for the petitioner would contend that the petitioner has already submitted the necessary forms along with every other material required for the purposes for processing the petitioner''s application for pensionary benefits. According to him, the authorities insisting further that there should be fresh compliance is uncalled for.
Per contra, the learned Standing Counsel for respondents 2 and 3 has prefaced his submissions by stating that the authorities have never denied the entitlement of the petitioner to the pensionary benefits. He has stated that through Exts P3 to P6, the authorities have only pointed out the defects to be cured, but strangely enough, the petitioner did not choose to comply with those statutory requirements. He has further stated that through Ext. P8 the authorities have required the petitioner to pay the amount of Rs. 3630/- to entitle himself to full pensionary benefits. If the petitioner is not inclined to pay the said amount, he would still be entitled to the benefit of pension, but at a reduced rate.
Addressing the issue who should pay the said amount of Rs. 3630/-, the learned Standing Counsel has stated that it is for the employee and employer to decide the said issue between themselves and that the P.F. Organization has nothing to do with it. This submission of the learned Standing Counsel, however, has been hotly contested by learned counsel for the petitioner.
The learned counsel for the 4th respondent, on his part, has submitted that the 4th respondent Corporation has been declared sick and is on the verge of closure. Presently, the Corporation has been manned by one single person with no administrative apparatus in place. He has further stated that the very scheme providing the benefit of pension to the employees of the Corporation came into existence in the year 1995, when onwards, the Corporation ensured that all statutory contributions have been made to the P.F. Organization. According to him, the amount of Rs. 3630/- was due from the years prior to 1995, when the respondent organization had no obligation to pay any amount including Rs. 3630/- which was demanded by the P.F. Organization.
Heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 2 and 3, as well as the learned counsel for respondent No. 4, apart from perusing the records.
Though the issue appears to be a simple and straightforward one, unfortunately, it has been dragged on for no apparent reason. It can further be accentuated that the scope of dispute is being absolutely narrow, it could have been thrashed out by the petitioner by simply complying with the direction of the P.F. Organization. Illustratively, it can be stated that in Exts. P6 to P8, the P.F. Organization required the petitioner to comply with certain statutory requirements, such as providing a certificate from his employer indicating his break in service. It has also required the petitioner to have the application attested by the employer. Indeed, there is some force in the contention of the learned counsel for the petitioner that in so far as the requirement of payment of Rs. 3630/- as a precondition to claim full pensionary benefit was not raised at the earliest point of time, when Ext. P3 to P6 were issued, but was raised only through Ext. P8 belatedly. The learned Standing Counsel for the P.F. Organization has, however, explained, satisfactorily though, that even in the absence of the said amount, the petitioner is still entitled to the pensionary benefit, but at a reduced rate. On the other hand, the learned Standing Counsel for the 4th respondent has convincingly demonstrated before this Court that the Scheme was formulated in 1995 and the obligation of the employer to contribute to the fund came into existence only subsequently.
As could be seen from the very pleadings of the petitioner, especially with reference to paragraph 8 of the affidavit filed in support of the Writ Petition, the amount of Rs. 3630/- required to be paid by the Writ Petitioner pertains to the period prior to 1995, when admittedly the employer had no liability.
In the light of the above factual scenario, it can safely be concluded that in terms of Ext. P8, dated 30.01.2009, the petitioner is required to re-submit his application in Form-10 D, which earlier was returned to him for compliance, by duly rectifying the defects pointed out by the P.F. Organization through Exts. P3 to P6. In so far as the remittance of Rs. 3630/- is concerned, the learned counsel for the petitioner has laid much stress on the fact that the petitioner has been in absolute penurious conditions. Apart from sympathising, this Court can only hold that it is entirely for the petitioner either to pay or not to pay. In other words, if the Writ Petitioner is willing to pay the said amount, he will be entitled to the full pensionary benefits; otherwise, he will be entitled to partial pension, which is statutorily permissible.
It is pointed out by the learned counsel for the petitioner that at this length of time, it is extremely difficult, nay impossible, to obtain the necessary certificates from the employer since the very organization has not been in existence, so to speak. Indeed, even in the counter affidavit filed by the 4th respondent there is an averment to the effect that only one single man is looking after the organization which is in the process of being wound up and that the records are not available. In any event, since the 4th respondent organization has admitted in the counter affidavit filed before this Court that there was lay-off intermittently and only those periods came in the way of completion of 10 years, the said averment, which is on oath, shall be taken as a certificate or affirmation of the factum of completion of ten years, and the petitioner''s application be processed by the P.F. Organisation, without insisting on the production of a certificate from the employer.
The learned counsel for the petitioner, however, raised an issue that this Court may issue a specific direction to the P.F. Organisation specifying the date, since when the petitioner is entitled to the pensionary benefits. I am afraid that there is neither any issue, nor any pleading concerning the said issue. At any rate, it cannot be doubted that the respondent P.F. Organization would be processing the application of the petitioner, on its submission, strictly in statutory terms, by extending the benefit of pension from the date the petitioner is entitled to. As such, in my considered opinion, it is not necessary to give any specific direction therefor.
With the above observations, the Writ Petition stands disposed of leaving it open to the petitioner to re-submit his application in Form-10 D after duly rectifying the defects pointed out by the P.F. Organization with or without remittance of Rs. 3630/-. Thereafter the respondent authorities shall process the said application as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.
There is no order as to costs.
Dated this the 19th day of August, 2014.