Civil Writ Petition No. 13740 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 13740 of 2010 Date of decision: 30.05.2011 Dr. B.S. Sharma ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. K.L. Dhingra, Advocate for the petitioner. Ms. Shurti Jain, AAG, Haryana for the State. RANJIT SINGH J. The petitioner has retired as Lecturer from D.A.V. College, Pundri (Kaithal) in the year 1998. He has filed this writ petition for quashing order dated 18.06.2010, Annexure P-7, whereby the entire share of Contributory Provident Fund has been deducted from the retiral benefits allowed to the petitioner. The petitioner had earlier filed CWP No. 6208 of 2005 for grant of pension and other retiral benefits. This writ petition was allowed on 05.12.2008. The LPA filed by the respondents was dismissed and so was the fate of the SLP. The petitioner, accordingly, deposited sum of ` 81,773/- calculated as per the the information furnished by respondent No. 2 that too with compound interest. The pension and retiral benefits were released to the petitioner at the same rate of interest at which the petitioner had Civil Writ Petition No. 13740 of 2010 2 calculated the interest as paid on the amount returned by the petitioner. Now, the calculation sheet issued by the letter of respondent/DAV college, Pundri would show that an amount of ` 5,91,644.55p is yet to be released. It is also seen that the petitioner has been paid simple interest on the pension and other retiral benefits against the compound interest charged from him. The petitioner served a demand notice and thereafter filed CWP No. 4821 of 2010, which was disposed of on 17.03.2010 with the directions to the respondents to decide his legal notice. The department has now rejected the claim of the petitioner and, therefore, the petitioner has filed the present writ petition to impugn the said order. The respondents have filed reply. Giving the background of the case, it is stated that prior to the introduction of pension scheme, the employees working in Non-Government privately managed Colleges were not entitled to any pensionary benefits and rather they were being given benefit of Contributory Provident Fund as per the service rules. The pension rules have now been made in lieu of Contributory Provident Fund (Employer Share) as per the provisions made in rule 3 (b) of the pension notification. The petitioner had not opted for the scheme due to some ambiguities. The same did not become operational. These were amended in 2001. On 18.06.2003, the petitioner made a request to permit him to opt for pension scheme as effective from 11.05.1998. The respondents refused to accept the request. Thereafter, he filed the writ petition before this Court, which was decided on 05.12.2008. The operative part of the order reads as under:- “ In these circumstances, this writ petition is allowed Civil Writ Petition No. 13740 of 2010 3 and the letter Annexure P-1 is quashed. The respondents are directed to permit the petitioner to submit a fresh option within four weeks after the receipt of certified copies of this order. In case the petitioner desired to opts for pension governed by the Pension Scheme, he would be liable to pay the entire amount of Contributory Provident Fund which he had received alongwith the statutory interest within a period of four weeks thereafter and consequently the respondents would be liable to bring the pension scheme forthwith within four weeks of the refund made by the petitioner. The respondents will release him all the arrears of his pension with the same rate of interest that the petitioner has paid on the Contributory Provident fund benefits.” It is conceded that the LPA and SLP filed against these orders by the respondents have been dismissed. Complying with the orders, the petitioner has been allowed pensionary benefits under the Haryana Affiliated Colleges (Pension and Contributory Provident Fund), Rules 1999 (Amended) (hereinafter referred to as '1999 rules') after depositing the entire CPF (Employee and Employer's Share) alongwith interest accrued plus 12% interest till the date of deposit. Reference is made to the contempt petition filed by the petitioner, which was dismissed on 01.09.2009 as the same was not pressed. Primarily, it is on the basis of the order passed by this Court that the amount has been withheld from the pension or the pensionary benefits of the petitioner. The view is that the petitioner is Civil Writ Petition No. 13740 of 2010 4 liable to pay the entire amount of Contributory Provident Fund including the employee and employer's share. Counsel for the petitioner has invited my attention to Rule 4 of the 1999 of the rules. This rule reads as under:- “4. Liability of refund amount of employees share.- Section 4 and 16 – Such of those employees retiring from the 11th day of May, 1998 to the date of publication of these rules in the Official Gazette, who exercise option to be governed by these rules, will be required to deposit the full amount of employer's share alongwith interest on such share actually drawn by the employees at the time of retirement plus 12% interest per annum on this amount to be calculated from the date of drawl of said amount to the date of deposit with Government.” It is clearly given in this rule that a person, who exercise option to be governed by these rules will be required to deposit the full amount of employer's share alongwith the interest on such share actually drawn by the employees at the time of retirement plus 12% interest per annum on this amount to be calculated from the date of drawl of said amount. This being the rule position, the petitioner legally cannot or could not have been asked to refund the complete amount of Contributory Provident Fund as contributed by him and was required to return the part contributed by employer's share also. In my view, the intention of the Court while allowing the writ petition could not have been contrary to the legal position. When the Court had observed that the petitioner is liable to pay entire amount of contributory fund, the Court obviously was referring to the Civil Writ Petition No. 13740 of 2010 5 fund, which would be refundable, as per the rules. That will be the only manner to read the directions issued by this Court. The position as contained in Rule 4 is not seriously disputed before me on behalf of the State. It is otherwise, reasonable and fair to say that the amount, which is required to be refunded would be an amount of employer's share alongwith the interest. Obviously the interest that is payable at the rate which was charged from the petitioner while releasing the pensionary benefits. The writ petition accordingly, deserves to be allowed. It is so ordered. The direction is, therefore, issued to the respondents to re-calculate the amount payable by the petitioner by keeping in view the legal position that the petitioner was only required to refund the employer's share of contributory provident fund. If the petitioner has already refunded that amount, the remaining amount if any withheld from the pensionary benefits of the petitioner be released within a period of two months from the date of receipt of copy of this order. May 30, 2011 (RANJIT SINGH ) rts JUDGE