P.T.Ramachandran v. The Regional Provident Fund Commissioner & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.6.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.4025 of 2006P.T.Ramachandran. ... Petitioner vs.1. The Regional Provident Fund Commissioner, Employees Provident Fund Organisation, Sub Regional Office, High Grounds, Tirunelveli-627 017. 2. The Regional Provident Fund Commissioner, Employees Provident Fund Organisation, Sub Regional office, Lady Doak College Road, Madurai-625 002.3.The Tiruchendur Co-operative Spinning Mills Limited, EE 183, Nazareth-628 617, Chidambaranar District, Tamil Nadu, represented by Thiru Nagalingam, Managing Director,(R3 was impleaded as per the courtorder dated 4.12.2008 in WPMP No.1443 of 2008) ... Respondents Writ Petition is filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus calling for therecords of the second respondent pertaining to the Pension PaymentOrder in P.P.O.No.TN/MDU 13646 dated 26.8.1997 and to quash thePension Payment Order as contemplated under provisions of theEmployees Pension Scheme 1995 and direct the second respondent to fixthe pension of the petitioner which he is entitled to as per thebenefits provided in para 12(5)(a) and (b) and to determine eligibleservice as per para 9(b) of the Employees' Pension Scheme. For Petitioner : Mr.O.A.Dinesh Kumar https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.K.Gunasekar, Additional Central Government Standing Counsel for R1 and R2:No appearance for R3O R D E RThe writ petition is filed to issue a Writ of CertiorarifiedMandamus calling for the records of the second respondent pertainingto the Pension Payment Order in P.P.O.No.TN/MDU 13646 dated 26.8.1997and to quash the Pension Payment Order as contemplated under theprovisions of the Employees' Pension Scheme 1995 and direct thesecond respondent to fix the pension of the petitioner which he isentitled to as per the benefits provided in para 12(5)(a) and (b) andto determine eligible service as per para 9(b) of the Employees'Pension Scheme. 2. The brief facts of the case is as follows:- Petitionerjoined in the services of the third respondent Tiruchendur Co-operative Spinning Mills Limited as a Spinning Fitter on 1.10.1963and retired on 20.1.1997 on attaining the age of 58 years. Accordingto the petitioner, he was enrolled as a member of the Employees'Provident Fund Scheme with effect from 1.9.1965. Thereafter, hejoined the Family Pension Scheme with effect from 1.6.1971.Petitioner became a member of the Employees' Pension Scheme 1995 witheffect from 16.11.1995 till 20.1.1997. According to the petitioner,the total period of service is 31 years (6+24+1 = 31). Complyingwith the requirements for release of pension, Form 10-D was submittedon 2.4.1997 and was processed and sanctioned by the secondrespondent, EPF Organisation, Sub Regional Officer at Madurai. On26.8.1997, Pension Payment Order was passed in PPO No.TN/MDU/13646and EPF Account No.TN/3926/257. According to the petitioner, in thePension Payment Order, he found that there was a glaring discrepancyin the number of years of service. According to the Pension PaymentOrder, in Serial No.7, the past service upto 15.11.1995 is shown as18 years and in Serial No.9, the total qualifying service is shown as19 years (6+7+8 = 19 years). This according to the petitioner iswrong. Petitioner also states that the quantum of monthly memberpension fixed is wrong. On request made by the petitioner, theemployee of the petitioner, viz., the third respondent sent lettersdated 12.2.1998, 7.10.1998, 23.11.1998 and 12.5.1999 recommending forenhancement of pension clarifying the discrepancy. This, however,was not accepted. The third respondent employer in his letter dated7.10.1998 has specifically stated that the break in service of thepetitioner is only 296 days and therefore, the error in calculationbased on lesser years of service should be corrected. Since therewas no response to these representations and recommendation made bythe third respondent employer, the petitioner approached the Taluk https://hcservices.ecourts.gov.in/hcservices/ Legal Service Committee, Srivaikundam. A legal notice was alsoissued to the first respondent Regional Provident Fund Commissioner,Employees' Provident Fund Organisation, Tirunelveli, to which it isstated by the respondents 1 and 2 that reply was given. On record,however, no such reply is available at present. 3. Learned counsel for the petitioner stated that the pensionhas been wrongly fixed at Rs.375/- per month and not in accordancewith para 12(5)(a) and (b) of the Employees' Pension Scheme 1995which reads as follows:-"(5) In the case of an employee who was amember of the ceased Family Pension Scheme, 1971and who attained the age 53 years or more on 16thNovember, 1995, the superannuation/retirementpension shall be equal to the aggregate of:(a) pension as determined under sub-paragraph (2) for the period of service renderedfrom 16th November, 1995 per month or Rs.335/- permonth, whichever is more. (b) past service benefits provided in sub-paragraph (3) subject to the minimum of Rs.500/-per month provided the past service is 24 years.Provided further that if it is less than 24 yearsthe pension payable and the past service benefitsshall be proportionately lesser but subject tothe minimum of Rs.265 per month."According to the petitioner, the aggregate of pension should beRs.335/- and past service benefits of Rs.500/- totalling to Rs.835/-per month. The further case of the petitioner is that in the PensionPayment Order, while determining the total qualifying service, it hasbeen wrongly shown as 19 years as against 30 years as per records.In this circumstances, the writ petition has been filed to quash thepension Payment order dated 26.8.1997 and to refix the pension bygranting benefits provided under para 12(5)(a) and (b) and todetermine the service in terms of para 9(b) of the Employees' PensionScheme.4. Learned counsel for petitioner further submitted that afterthe Regional Provident Fund Authority issued the Pension PaymentOrder based on the Form-10D submitted by the employer and on receiptof the Pension Payment Order dated 26.8.1997, the representation asabove were made by the petitioner. This has been forwarded to theauthorities concerned within a short period (i.e.) in February 1998.The third respondent has also recommended the case of the petitionerfor enhancement of pension based on service records. Therefore, https://hcservices.ecourts.gov.in/hcservices/ petitioner has taken immediate steps to redress his grievance forrevising the Pension Payment Order and there is no delay or latcheson his part. 5. A counter-affidavit has been filed by the respondents 1 and2 stating that based on records that were forwarded by the employer,the third respondent, invoking the Family Pension Scheme 1971, andEmployees' Pension Scheme, 1995, determined the period of actualservice as 19 years. The further case of the respondents 1 and 2 isthat once the Pension Payment Order is passed, there is no provisionfor modifying the same. The manner in which the Pension PaymentOrder has been worked out has been shown for the first time in thecounter-affidavit. According to the respondents 1 and 2, they havecomplied with the provisions of Employees' Pension Scheme, 1995. Asregards the claim for longer period of service is concerned, thespecific stand of respondents 1 and 2 is that the period of servicehas been taken based on the statement made by the employer, the thirdrespondent. There is no scope or specific provision for revising theorder after issue of Pension Payment Order. On this premise, thewrit petition is opposed. 6. Third respondent has filed a counter-affidavit supportingthe writ petitioner. Para 3 of the counter-affidavit reads asfollows:"(3) I submit that at the time of retirement,details of break-in-service of the petitioner wasfurnished to the respondents for pension. Howeverthe particulars were not properly furnished to therespondents 1 & 2. Therefore on coming to know ofthe same and also in view of the request made bythe writ petitioner, this respondent furnished therevised break-in-service details to therespondents 1 & 2 and also requested therespondents 1 & 2 to enhance the pension to thepetitioner based on the revised break-in-serviceby its various letters dated 12.02.1998,10.11.1998, 23.11.1998 and 12.05.1999. But, thesaid requests were rejected by the respondents 1 &2 stating that any revised break in servicedetails shall be brought to the respondents 1 & 2before they accept or pass pension payment order."Third respondent employer has clearly stated that they haverecommended the case of the petitioner for enhanced pension based onrecords pursuant to the representation made by the petitionerimmediately after the Pension Payment Order was passed. https://hcservices.ecourts.gov.in/hcservices/

7. The dispute in the present case basically revolves aroundthe period of service of the petitioner under the third respondent.It is not in dispute that at the time of submitting the Form-10D, theperiod of service has been shown far less than the actual period.This was corrected by the third respondent employer subsequent to thePension Payment Order after noticing the mistake as pointed out bythe petitioner. Even assuming the Form-10D which has been submitteddoes not contain the correct details, the petitioner has made arepresentation within a reasonably short time to correct the errorand the employer has also recommended the case after noticing themistake. In such circumstances, the respondents 1 and 2 should haveconsidered the representation and pass a detailed order explainingthe manner in which the Pension Payment Order has been passed. It isonly in the counter-affidavit, the explanation is given. It is notfor this court to look into the details and verify the PensionPayment Order with mathematic calculation. Respondents 1 and 2 havealso to consider the recommendation made by the employer with regardto the length of service based on records. After considering thesame, the question of application of para 12(5)(a) and (b) will haveto be considered. These are matters which have to be factuallyverified before any order is passed regarding the petitioner's claim.If there is an error, the respondents 1 and 2 will have to explainwhether such error can be rectified or not. The only reason given isthat once the Pension Payment Order is issued, it cannot be revised.No provision of law, rule or regulation has been shown as to why therequest of the petitioner duly recommended by the third respondentemployer cannot be considered. There is no delay or latches on thepart of the petitioner. If it is a bona fide mistake and if there isno impediment under the scheme, the petitioner cannot be shut outstating that genuine and bona fide errors cannot be corrected. 8. Since the grievance of the petitioner is based on theservice records and consequent interpretation of the provisions ofthe Employees' Pension Scheme as applicable from time to time, thiscourt is not inclined to interfere and quash the Pension PaymentOrder at this stage. On the contrary, in the interest of justice, itwill be just and reasonable if the 1st respondent is directed toconsider the representation of the petitioner along with therecommendation of the third respondent employer for revising theperiod of service and consequently enhance the pension by way of areasoned order explaining the manner in which the pension paymentorder has been issued. Petitioner is also entitled to make furtherrepresentation to the first respondent explaining his case. Firstrespondent will look into the representation of the petitionerobjectively, based on records to be produced and pass a detailedorder on merits within a reasonable period of time. To this reliefthe petitioner's claim is justified. If aggrieved, petitioner canchallenge the same as per law. https://hcservices.ecourts.gov.in/hcservices/

9. In the result, the relief of certiorari to quash the PensionPayment Order is negatived. On the contrary, petitioner is entitledto the relief of writ of mandamus. Accordingly, the firstrespondent is directed to pass a reasoned order based on thepetitioner's representation already made and further representationif any together with the recommendation of the third respondentemployer and pass a reasoned order on merits. Petitioner is entitledto make further representation if any within two weeks from the dateof receipt of a copy of this order and the first respondent shalldispose of the same within six weeks thereafter. The Writ Petitionis ordered accordingly. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsTo 1.The Regional Provident Fund Commissioner, Employees Provident Fund Organisation, Sub Regional Office, High Grounds, Tirunelveli-627 017. 2.The Regional Provident Fund Commissioner, Employees Provident Fund Organisation, Sub Regional office, Lady Doak College Road, Madurai-625 002.1 cc To Mr.K.Gunasekar, Advocate, SR.22877.1 cc To Mr.O.A.Dineshkumar, Advocate, SR.22256. W.P.No.4025 of 2006MSM(CO)RVL 18.06.2009