RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE
Facts
WP-10608-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10608 OF 2024Shaikh Shabbir Shaikh NazirAge: 65 years, Occu. RetiredR/o. Karanja, Azizpura Beed,Tq. & Dist. Beed… Petitioner VERSUS1.The State of MaharashtraThrough its Chief Secretary,Transport Department,Mantralaya, Mumbai – 322.The Assistant P. F. Commissioner (Accounts)Regional Office, Aurangabad3.The Maharashtra State Road TransportCorporation, Through its DivisionalController, Beed Division, Beed,Near Bus Stand, Beed,Tq. & Dist. Beed… Respondents .…Mr. A. R. Syed, Advocate for the Petitioner Mr. S. K. Tambe, AGP for Respondent No.1 – State Mr. N. K. Choudhari, Advocate for Respondent No.2 Mr. D. S. Bagul, Advocate for Respondent No.3.…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE: 30.09.2024 1 of 9
Legal Reasoning
(( 3 ))WP-10608-2024(F)This Hon’ble Court may be pleased to issue appropriatewrit order or directions to the respondent no.3 to pay anamount of Rs.5,00,000/- towards compensation for harassmentto the petitioner for release of pension.”4.Having considered the strenuous submissions on behalf ofboth the sides, we have gone through the Petition paper-book. It isundisputed that, on 06.05.1989, the Petitioner was joined the serviceas a Bus Driver with the Respondent No.3 and after rendering morethan 28 years of service, he superannuated on 31.12.2017 afterattaining the age of superannuation. Therefore, the Respondent No.3Employer MSRTC was under obligation to forward proposal ofpension of the Petitioner prior to six months of his superannuation.However, no such proposal has been forwarded. Therefore, thePetitioner was approached with Respondent No.3 seeking forreleasing the pensionary benefits, but till date, no such benefits areextended to him. Ultimately, the Petitioner sought information underthe Right to Information Act on 22.02.2019, but no such informationwas supplied, which resulted to lodged an Appeal before theAppellate Authority on 03.08.2019. Since the Respondent no. 3MSRTC failed to release the pensionary benefits, therefore, thepetitioner through the Employees’ Union raised his grievance with 3 of 9 (( 4 ))WP-10608-2024the Assistant P. F. Commissioner (Account Group), Aurangabad.Therefore, on 13.01.2023 to the Assistant P. F. Commissioner (AccountGroup), Aurangabad, issued a communication to Respondent No.3,stating that as per its office record i.e. Form No.8 FPF for the year1995/96, no any contribution remitted in A/c No.4187 for EPF71 andEPS 95 from the inception of ECR with effect from 2012. So also, noname of the Petitioner i.e. Shri Shaikh Shabbir Shaikh Nazir, shown inany account number with effect from 2012 till his date of retirement.However, on 04.07.2023, the Divisional Controller MSRTC, issued acommunication to the Deputy Commissioner, Provident Fund, that,the petitioner having EPS account No.MH/15841/4187 andMH/15841/4188. Therefore, on two account numbers, no pensioncan be sanctioned and no pension has been sanctioned in favour ofthe Petitioner. 5.Mr. A. R. Syed, the learned counsel appearing for thePetitioner canvassed that though the Respondent No.3 employerdeducted contribution towards P. F./pension from the salary of thePetitioner and credited in the Petitioner’s accountNo.NG/15841/4187 from the year 2011-2012 till 31.12.2017 i.e. tillthe date of the petitioner’s retirement, but Respondent no. 3 wrongly 4 of 9 (( 5 ))WP-10608-2024deposited said subscription in account No.NG/15481/4188 which isstanding in the name of Shri Baburao Bajirao Ovhal and denied thepensionary benefits to the Petitioner. 6.Mr. Bagul, the learned counsel appearing for theRespondent No.3 Employer fairly conceded that as per thecommunication dated 30.08.2024, issued by Respondent No.2Authority, the Petitioner having P.F. account No.NG/AUR/15841/4187from the date of his joining till his superannuation. However, onverification of the I.D. number NGAUR0015841000004187, it isfound that the said ID was allotted to Shri Baburao Soudagar Kandeand no any member ID linked with the member of Shri ShaikhShabbir Shaikh Nazir (Petitioner) in the system of the EPFO. So also,the employee in whose account amount of provident fundsubscription inadvertently deposited, furnished the undertaking forrelease of funds in the account of NGAUR/15841/4187. Therefore,the petitioner would get the said benefits, hence, prayed for dismissalof the petition. 7.Needless to say that Respondent No.3 who is employer ofthe Petitioner, regularly deducted the monthly contribution towards 5 of 9 (( 6 ))WP-10608-2024the P.F. from the salary of the Petitioner, however, due to bona fidemistake on the part of the Employee of the Respondent no. 3 MSRTC,said amount of contribution deposited in account of anotheremployee, namely Baburao Bajirao Ovhal, who tendered anundertaking on 14.10.2022 for diverting the said amount in theaccount of the Petitioner. 8.Paragraph 20 of the Employees' Pension Scheme, 1995provides that every employer shall send to the Commissioner, withinthree months of the commencement of this scheme, a consolidatedreturn of the employees entitled to become Members of theEmployees' Pension Fund showing the basic wage, retainingallowance, if any, and dearness allowance including the cash value ofany food concession paid to such employee. Paragraph 23 of the saidscheme provides for allotment of account numbers forimplementation of the employees pension scheme, 1995. Paragraph39-A provides that the employer of the exempted establishment orclass or establishments and/or the Board of Trustees of the exemptedestablishment or class of establishments, shall submit a monthlyreturn to the Commissioner in Form-I. 6 of 9 (( 7 ))WP-10608-20249.No doubt, the petitioner is a member of the Employees'Pension Scheme, 1995, and he has contributed monthly subscriptionfor the said scheme. The Petitioner superannuated on 31.12.2017.This fact is not disputed by Respondent No.3 employer. However,Respondent No.3 contended that the amount of contribution inrespect of the petitioner has been wrongly deposited in the account ofanother employee Shri Baburao Bajirao Ovhal, who has tendered anundertaking for transfer of the said fund. This does not redress thegrievance of the Petitioner, who is not at fault for the mismanagementof the MSRTC. 10.Needless to say that, Para 4 of the Employees PensionScheme, 1995 provides that the employer shall pay the contributionpayable to the Employees’ Pension Fund in respect of each Member ofthe Employees' Pension Fund employed by him directly or through thecontractor and the Principal employer is responsible to pay thecontribution to the Employees' Pension Fund. 11.Since the Petitioner rendered 28 years service andsuperannuated on 31.12.2017, and as such, he is a member of theEmployees' Pension Scheme, 1995, therefore, on superannuation, the 7 of 9 (( 8 ))WP-10608-2024Petitioner is entitled for the pension under the Employees' PensionScheme, 1995. Needless to say that, P. F., contribution fund of thepetitioner deposited some time in A/C No. NG/15841/4187 and sometime in A/C No. NG/15841/4188. It is not in dispute that anotherEmployee Shri Baburao Bajirao Ovhal having P.F. A/C No.NG/15841/4188. However, the Respondent no. 3 depositedcontribution of petitioner’s share in P.F. A/C No. NG/15841/4188standing in the name of Shri Baburao Bajirao Ovhal. Therefore, it isthe primary responsibility of the Respondent No.3 to first depositamount of contribution in account of the Petitioner and thereafter, theRespondent no. 3 MSRTC with the consent of the Respondent no. 2may take independent recourse to transfer or to get back said amountfrom account of it’s employee Shri Baburao Bajirao Ovhal, in whoseaccount subscription wrongly deposited. 12.Since, the Petitioner deprived from receiving the statutorypensionary benefits since last seven years, because of inaction on thepart of Respondent No.3, therefore, the Petitioner would certainly beentitled to receive the said benefit with interest @ 9% p.a. from thedate of his retirement i.e. 31.12.2017, till actual payment is beingmade. Accordingly, the Respondent No.3 is hereby directed to pay the 8 of 9 (( 9 ))WP-10608-2024pension under the contributory fund from the Employees' PensionScheme, 1995, to the Petitioner within period of one month from thisorder along with compensation amount of Rs.25,000/- (RupeesTwenty Five Thousand). The Respondent no. 3 MSRTC is herebygranted liberty to recover the said amount from the account ofanother employee i.e. Shri Baburao Bajirao Ovhal, in whose accountthe contributory fund is wrongly deposited.13.With the above directions, the Writ Petition is disposedoff. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 9 of 9
Arguments
(( 2 ))WP-10608-2024ORDER (Per- Y. G. Khobragade, J. ) :- 1.Heard Mr. A. R. Syed, the learned Advocate for thePetitioner, Mr. S. K. Tambe, the learned AGP for Respondent No.1,Mr. N. K. Choudhari, the learned Advocate for Respondent No.2 andMr. D. S. Bagul, the learned Advocate for Respondent No.3. 2.Since very short issue involved in the present petition,therefore, it is heard finally at the state of the admission. 3.By the present Petition, the Petitioner put forth prayerclauses (C), (D), (E) and (F) as under:-“(C)This Hon’ble Court may be pleased to issue appropriatewrit, order or directions against the respondent no.3 to forwardthe pension papers of the petitioner by complying all therequisite formalities required for release of pension withinstipulated period.(D)The Hon’ble Court may be pleased to issue appropriatewrit, order or directions to the respondent No.2 to compute andrelease the pension of the petitioner within stipulated period. (E)This Hon’ble Court may be pleased to issue appropriatewrit order or directions to the respondent no.3 to pay 18%interest on the unpaid pension within stipulated period. 2 of 9