V.A. Yesan Basha vs Regional Provident Fund Commissioner-II

K. Chandru, J.—The Petitioner has filed the present writ petition seeking to challenge an order of the Respondent Regional Provident Fund

Commissioner-II, Vellore, dated 17.03.2008. By the impugned order, the Respondent held that the Petitioner''s claim to accept the revised Form

10 submitted in the year 1986 and to grant widow family pension to the Petitioner''s mother Smt. Ayesha Bi cannot be accepted under the

Employees Family Pension Scheme,1971.

On notice from this Court, Ms. V.J. Latha, learned Counsel is appearing for the Respondent. But no counter affidavit was filed. The case of the

Petitioner was that he is the son of late Abdul Majeed, who was working as Beedi Bundle Packer in M/s. V.K. Abdul Jabbar Sahib & Sons,

Vellore from the year 1967. He went on medical leave from 18.01.1982. He died on 09.04.1982. He was suffering from Tuberculosis. He was on

the roll of the establishment of the employer till his death on 09.04.1982. Even though these facts were admitted by the employer, by letter dated

13.12.1986 in a reply to the query made by the Respondent, dated 3.12.1986, they had further stated that Form 10A which was sent in the year

1982 was erroneous and the Respondent should accept the revised Form-10. On account of death of his father, his mother Ayesha Bi being the

wife of late Abdul Majeed was entitled to get widow pension. When the same was not paid, the said Ayesha Bi had filed a claim petition before

the Labour Court being C.P. No. 2229 of 1993. The said claim petition was dismissed as not maintainable by an order dated 05.12.1995.

Thereafter, another claim petition was filed in C.P. No. 646 of 2003 claiming wages for the period from 18.1.1982 to 09.04.1982. The labour

court vide order dated 21.04.2004 held that the Petitioner''s father was actually in service till his death, i.e., 9.4.1982. But since he had not actually

worked during the said period, he was not eligible for any wages on the basis of No work No pay. The said order was not challenged by the

employer. The Petitioner''s mother filed a claim before the Respondent requesting for family pension. As per para 7 of the 1971 Pension Scheme,

an enquiry was held. During the pendency of the enquiry, the Petitioner''s mother died on 28.10.2006. Thereafter, the Petitioner filed a memo,

dated 11.12.2006 to bring the legal heirs on record. That petition was allowed and the legal heirs were brought on record. In view of the above,

the Respondent ought to have held that the Petitioner''s mother was entitled for widow pension for the period from 09.04.1982 to 28.10.2006.

But the Respondent purporting to exercise the power under para 7 of the 1971 Scheme had held that there was delay in making a claim.

A perusal of the impugned order shows that the Respondent was some how bound to reject the case of the Petitioner only because of the

finance liability that may be fasten on them. On the other hand, in the present case, the finding of the labour court in C.P. No. 646 of 2003, dated

21.4.2004 was that the Petitioner''s father was in service till the date of his death, i.e. 9.4.1982. Admittedly, his employment was under the Beedi

and Cigar Workers (Conditions of Employment) Act, 1966. The Petitioner''s father had been working in M/s. V.K. Abdul Jabbar Sahib Sons

from 1967. At the time of his death, he had put in 15 years of service and that the employment of the Petitioner''s father was accepted. The term

employee"" is defined u/s 2(f) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966. It does not make any distinction between

the daily wage worker or monthly wage earner. On the other hand, Section 31 of the Act is made mandatory so as to make the employer not to

dispense with the services of the employee, who had put in 6 months of service except for reasonable cause and without giving such employee at

lease one month notice or wage in lieu of such notice. Therefore, even if the Petitioner''s father was on medical leave from 18.01.1982 to

09.04.1982 and he was not paid wages in terms of the Contract of employment, he could not have been terminated from service without

complying with Section 31 of the Act. Since he had died after 15 years of service, there can never be any presumption of abandonment from

service under the Act. Since he had died while his name was still in the roll of employment, it has to be deemed that he was in continuous

employment. As per 1971 Pension Scheme, since the member of the pension scheme had died while in service, his widow is entitled for getting

family pension.

In view of the above, the writ petition will stand allowed and the impugned order will stand set aside. The Respondent is hereby directed to

grant family pension to the legal heirs of late Abdul Majeed on account of widow pension to which Smt. Ayesha Bi is entitled to for the period

from 09.04.1982 to 28.10.2006. This exercise shall be carried out within a period of eight weeks from the date of receipt of copy of this order.

However, there will be no order as to costs.