IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 33682 of 2004(I) -------------------------- PETITIONER: ------------ U.SREELATHA, UNNERI HOUSE, PODIKUNDU, P.O. PALLIKUNNU, KANNUR-670 004. BY ADV. SRI.C.K.SREEJITH RESPONDENT: ------------- ASSISTANT P.F. COMMISSIONER & OFFICER IN-CHARGE, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, KANNUR. BY GOVERNMENT PLEADER SRI. P.N. SANTHOSH ADV. SRI. N.N. SUGUNAPALAN. ADV. SMT. T.N. GIRIJA ADV. SRI. R. SUDHIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 33682/2004. -------------------------------------------------------------------- EXT.P1 TRUE COPY OF APPLICATION DT. 2-5-2002. EXT.P2 ORDER DT. 7-10-2002. EXT.P3 ORDER DT. 11-2-2003. EXT.P4 LAWYER NOTICE ISSUED TO THE RESPONDENT. EXT.P5 REPLY ISSUED TO THE PETITIONER. EXT.P6 TRUE COPY OF FORMAT OF AGREEMENT. RESPONDENT'S EXHIBITS: ------------------------------------ EXT.R1(a) TRUE COPY OF PRO DT. 7-10-2002. EXT.R1(b) ORDER IN O.P.NO. 335/2003 DT. 2-6-2004. EXT.R1(c) LETTER DT. 27-10-2004. EXT.R1(d) REPLY DT. 14-10-2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 33682 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 5th June, 2008. J U D G M E N T Petitioner is the wife of late Sri. A. Damodaran, who was an employee of the Tiruveepattu Mill which was closed down. Petitioner's husband was a member of the employees provident fund under the Employees Provident Funds and Miscellaneous Provisions Act as a result of which, he became entitled to pension under the Employees Pension Scheme. Pension was sanctioned at the rate of Rs. 880/- to the petitioner and Rs. 220/- to the petitioner's daughter by Ext. P3 order. Petitioner's husband had earlier opted for return of capital for granting which the pension has to be reduced at the rate of Rs. 450/- and the excess amount from the pension already paid at the rate of Rs. 880/- has to be refunded as demanded by Ext. P5 communication from the respondent to the petitioner. Petitioner's husband is no more. The petitioner is challenging Ext. P5. According to the petitioner, she is entitled to return of the capital of Rs.72,600/- as well as the full pension of Rs. 880/-. The petitioner therefore seeks the following reliefs: “(i) Issue a writ of mandamus or such other writ or direction directing the respondent to disburse the return of capital as opted by the petitioner's husband vide Ext. P1 under the employees pension scheme, 1995; (ii) issue writ of certiorari quashing Ext. P5 to the extent it direct to reduce the family pension from rs. 880/- to Rs. 450/- per month; (iii) issue any other writ or direction directing the respondent to disburse Rs. 72,600/- within such time that this Hon'ble High Court may deem fit to grant in the facts and circumstances of the case.” 2. A counter affidavit has been filed by the respondent. The respondent would submit that the petitioner would be entitled to return of capital only if the pension is reduced to Rs. 450/-. If pension is reduced to Rs. 450/-, the petitioner would be entitled to return of W.P.C. No. 33682/2004. -: 2 :- capital of Rs. 72,600/-. But, since, already pension has been received at the rate of Rs. 880/-, the difference between the same and the reduced pension has to be adjusted against the refund of capital. 3. After hearing both sides, I do not find anything wrong with the action of the respondent in issuing Ext. P5. The petitioner cannot have it both ways i.e. to receive pension at Rs. 880/- and also return of capital. So also, respondent is entitled to recover the excess pension received from the return of capital. In the above circumstances, I do not find any merit in the writ petition and accordingly the same is dismissed. Sd/ S. Siri Jagan, Judge. Tds/