G.Kuppusamy v. The Regional Provident Fund Commissioner,Employees Provident Fund Organization,Sub Regional Office,No.18,Shree Complex,Madurai Road,Trichirapalli-620 008 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.12.2009CORAM:THE HON'BLE MR.JUSTICE N.KIRUBAKARANW.P.No.25570 of 2003G.Kuppusamy... PetitionerVs.

The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Sub Regional Office, No.18,Shree Complex, Madurai Road, Trichirapalli-620 008.

Neyveli Lignite Corporation Ltd.,Corporate Office,P&A Department, Neyveli-607 801.... RespondentsPRAYER: This Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of CertiorarifiedMandamus, to call for the records of the first respondent in his proceedings bearing No. B8/TN/TR/10719/1017/W.P.No.19928/2000/LEGAL/2002 dated 09.01.2003 and quash the same and to declare that the petitioner is the deemed member of the family pension scheme of 1971 and direct the respondents to permit the petitioner to exercise the petitioner's option to become member of the Employees Pension Scheme 1995. For Petitioner : Mr.K.M.Srirangan For First Respondent : Mr.K.GunasekharFor Second Respondent : Mr.N.A.K.Sarma An Officer of the second respondent has come forward with the writ petition before this Court after a lapse of 27 years without making any claim with regard to his Family Pension. He challenged the order of rejection passed by the first respondent.2. The facts of the case which are as follows:-The petitioner joined in the second respondent Office in the https://hcservices.ecourts.gov.in/hcservices/ year 1957 and he worked as Personnel Officer at the time of retirement, i.e. on 30.04.1994. On 01.03.1971, the Family PensionScheme 1971 was introduced under Section 6 (A) of the Employees'Provident Funds and Miscellaneous Provisions Act, 1952, for the purpose of providing family pension and life assurance benefits to the employees / members by the Central Government. The employees were given option to join the said scheme and were given time before30.04.1972. The petitioner then opted for the said scheme subsequently on 03.03.1989. Another opportunity was given throughMemo No.2216 / IR-3/89 issued by the second respondent wherein it is stated as follows:- "The employees who were members of the FamilyPension Scheme and had not exercised their option to jointhe scheme in earlier during 1971 when the scheme was brought into operation for permitted to exercise their option to join the scheme. "

Even then the petitioner did not exercise the option. Subsequently, the petitioner retired on 30.04.1994. After the retirement, on 23.03.1998 the petitioner made a claim by writing aletter to the first respondent that he came to know that a new scheme called the "Employees" Pension Scheme 1995 was floated to the effect that the applications may be sent to the members of Employee’sProvident Fund Scheme left the service between 01.04.1993 and15.11.1995 in order to avail the benefits under Employees ProvidentFund Scheme 1995. The said communication was followed by petitioner'sletters dated 15.01.1998 on 15.04.1999. Therefore, by reply dated28.04.1999, the second respondent informed that the petitioner did not join employment under employee pension scheme. Therefore, by another reply dated 25.05.1999, the second respondent stated that this employee provident scheme would be applicable only for those who are working as regular employees and not for the retired persons like the petitioner.

As there was no positive reply from the side of respondents, the petitioner filed a writ petition in W.P.No.19928 of2000 in which the petitioner prayed for an order to treat him as adeemed member of the family pension scheme 1971. This Court by order dated 25.07.2002 directed the petitioner to give a representation and thereafter the respondents to dispose of the said representation pursuant to the orders of this Court, by order dated 09.01.2003, the first respondent rejected the claim of the petitioner which is impugned before this Court. https://hcservices.ecourts.gov.in/hcservices/

Mr.Srirangan, the learned counsel for the petitioner referring to the scheme 1971 submitted that it is the duty of the employer to get the options regarding this scheme, where as the petitioner was not given any option by the second respondent right from 1971. He further stated that there was no information with regard to the scheme and he was kept in darkness which resulted in not opting for the scheme. He specifically referred to Section 4 (iv)which reads as follows:- “It shall be the duty of the every employer toget the option referred to above exercised by every member to whom the option is given within the time specified”

The counsel further submitted that it is mandatory on the part of the second respondent to get the option from the employees regarding the scheme. Only after the petitioner came to know about the scheme, he made a claim. He further submitted that there was default on the part of the employer, and because of that only he could not exercise his right as an employee who did not know about the scheme. He also referred to sub-section (1) of Section 15 of the scheme which speaks about duties of the employers is as follows:-"The employer shall send to the Commissioner, within fifteen days of the commencement of this Scheme, aconsolidated return of the employees entitled to become members of the Family Pension Fund showing the basic wage, retaining allowance, if any, and dearness allowance including the cash value of any food concession paid to each of such employees: Provided that if there is no employee who is entitled to become a member of the Family Pension Fund, the employer shall send a NIL" return. "

The learned counsel for the petitioner submitted that he not aware whether the second respondent sent the list as per Section15 of the scheme. It is submitted that the petitioner was not aware of the scheme as he did not receive any notice which is required tobe given under the scheme and the lapse on the part of the second respondent cannot be made against the petitioner to deny the right.

On the other hand Mr.Sharma, the learned counsel appearing for the second respondent submitted that the petitioner joined in the second respondent corporation as early as in 1957 and he was workingas a Personnel Officer in the Personnel Department who was responsible for the implementation of various schemes. As a PersonnelOfficer, he was required to know the Rules and Regulations and notification and the schemes which are for the employees of the second respondent corporation. Much publicity was given about the scheme. Moreover, he is a Graduate holder and it is too late for the petitioner to plead ignorance about the scheme which came into force https://hcservices.ecourts.gov.in/hcservices/ about 27 years ago viz., as on the date of the claim of the petition on 23.03.1998.

Even after 1971, another option was given by the second respondent through memo dated 03.03.1989, which the petitioner could have usefully utilized but he failed to do the so. Secondly, Mr.Sharma, the learned counsel for the respondent submitted that assuming the petitioner has got any right, and the same is taken away, this Court can deny the relief on the ground of lacher. Thirdly, according to the counsel, his estopped from claiming any right by way of his conduct and in similar circumstances, this Courtin W.P.No.1267 of 2000 by order dated 12.02.2002 refused to give relief under the scheme. In such circumstances, the petitioner is not entitled to any relief.

Mr.Gunasekhar learned counsel for the first respondent submitted that there was right for the petitioner to get any claim or benefits under Family Pension Scheme 1971 as no deduction was made towards family pension. The aforesaid ratio was laid by the DivisionBench of Bombay High Court in Smita v. Regional Provident FundCommissioner, Thane and others reported in 2001 (2) LLJ page 1048.

A perusal of the records would shows that the petitioner joined the office of the second respondent as early as in 1957 and retired on 30.04.1994. It is an admitted fact that the scheme came into force on 01.03.1971, and again another option was given on03.03.1989. The petitioner did not opt for the scheme on both occasion. As per the contention of the petitioner, the employer was required to get the option from each employee and that was lacking in the case of the petitioner. When the scheme was much published and there is no necessity to give individual notice to every employee under the scheme. Section (4) (iv) would not make the employer to call each of the employee and to explain about the scheme and get his option. The second respondent corporation has got thousands of employees and it is practically impossible for the corporation to do that exercise and it is enough if advertisement / publication is given to employees with regard to highlights of the pension scheme.

As admitted by both the parties the petitioner was employed in respondent corporation right from 1957 till his retirement 1994. He got 37 years of service and he was supposed to know each and every regulation, laws, notifications as he was serving in the Personnel Department and retired as Personnel Officer. Even if any right as accrued to the petitioner under the scheme, this Courthas to see the tenure of the scheme. The petitioner after retirement from service i.e. on 30.04.1994 and after the lapse of four years hemakes a claim to include his name in the family pension scheme. Therespondents have already stated that the family pension scheme was already over in 1999. If an employee joins family pension scheme, the contribution to the scheme would be deducted from the salary during his services, whereas the petitioner had retired from the corporation as early as in 1998 and therefore, petitioner's claim to https://hcservices.ecourts.gov.in/hcservices/ become member of scheme without any contribution cannot be sustained.

Person who is aware of right moves the Court for the said right alone is entitled to the relief. The petitioner slept over the matter and makes hue and cry after a very long delay. Delay defeats the rights.