IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 WP(C).No. 34342 of 2004(L) -------------------------- PETITIONER(S): ---------------------- N. RAMAKRISHNAN, METTUMPURATH HOUSE, KOOTHATTUKULAM P.O. ERNAKULAM DISTRICT 686 662 DY.MANAGER, M.M.T.C.LTD. (RTD) BY ADV. SRI.M.N.MATHEW RESPONDENT(S): ------------------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER (PENSION), EMPLOYEES' PROVIDENT FUND ORGDANISATION, 8TH AND 9TH FLOOR, MAYUR BHAVAN, CONNOUGHT CIRCUS, NEW DELHI-110 001. 2. THE REGIONAL PROVIDENT FUND COMMISSIONER (PENSION), EMPLOYEES' PROVIDENT FUND ORGANISATION, 36/685 A, BHAVISHYA NIDHI BHAVAN, P.B.NO.1895, KALOOR, KOCHI-682 017 3. MMTC LIMITED, REPRESENTED BY THE CHAIRMAN & MANAGING DIRECTOR, SCOPE COMPLEX, 7, INSTITUTIONAL AREA LODI ROAD, NEW DELHI -110 003. 4. THE DEPUTY GENERAL MANAGER, MMTC LIMITED SUB REGIONAL OFFICE, JOS TRUST BUILDING, POST BOX 3597, CHITTOOR ROAD, ERNAKULAM, KOCHI-682 035. ADV. SRI.S.GOPAKUMARAN NAIR, SC, P.F. FOR R1 & R2 SRI.D.PEETHAMBARAN FOR R3 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/3/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb WP(C).No. 34342 of 2004 A P P E N D I X PETITIONER'S EXHIBITS:- P1:- COPY OF THE LETTER NO.MMTC/08/783/92/RB/EPF/98-99 DATED 21.05.1999 ISSUED BY THE 3RD RESPONDENT EMPLOYER TO THE PETITIONER P2:- COPY OF LETTER NO.MMTC/08/783/RB/98-99 DATED 24-10-1999 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER P3:- COPY OF LETTER DATED 10-03-2004 ISSUED BY THE PETITIONER TO THE RESPONDENTS P4:- COPY OF NOTICE DATED 25-06-2004 ISSUED BY THE PETITIONER TO THE RESPONDENTS P5:- COPY OF LETTER NO.KR/KC/DL/E/1257/82/Pen.Cell(4)/2004 DATED 15-07-2004 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT P6:- COPY OF PETITIONER'S PASS BOOK RELATING TO ACCOUNT NO.C28/8348 ISSUED BY STATE BANK OF INDIA, ERNAKULAM 682011 SHOWING ENTRIES FROM AUGUST 1995 TO MARCH 1996 RELATING TO THE RELEVANT PAYMENTS AND WITHDRAWALS RESPONDENTS' EXHIBITS :- NIL //TRUE COPY// P.A TO JUDGE ANTONY DOMINIC, J. ---------------------------------- W.P(C) No. 34342 of 2004 --------------------------------------------- Dated this the 24th day of March, 2011 J U D G M E N T The petitioner was an employee of the 3rd respondent. The 3rd respondent is an establishment covered under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. The petitioner was a member of the Family Pension Scheme, 1971, framed under the provisions of the aforesaid Act. On an application made by the petitioner for Voluntary Retirement, he retired from service with effect from 31.7.1992. However, benefit due to the petitioner under the 1971 scheme were paid only 27.9.1993. 2. Subsequently, with effect from 16.11.1995 the Employees Pension Scheme, 1995 came into force. The petitioner claimed the benefit of the 1995 scheme. However, in Ext.P2 he was informed that, since his claims following his voluntary retirement, have already been settled under the 1971 scheme, he was ineligible and on that basis his claim was returned. He again submit Exts.P3 and P4 representations. W.P(C) No. 34342 of 2004 2 Although by Ext.P5, the 2nd respondent informed him that his representations were forwarded to the 1st respondent. There was no response. That made the petitioner to file this writ petition with the following prayers:- “(i) Call for the records and declare that the petitioner is entitled to monthly pension as admissible under the Employees' Pension Scheme, 1995 and all other related consequential benefits with effect from 15.11.1998. (ii) Issue a writ in the nature of Mandamas, Order, or Direction, directing the 2nd respondent to pay the monthly pension to the petitioner as admissible under the Employees' Pension Scheme, 1995 and all other related consequential benefits as immediately as possible from 15-11-1998 with arrears thereof with 12 percent interest per annum from 15-11-1998 till the date of payment. (iii) Direct the 2nd respondent to adjust the returnable amount of the withdrawal benefit of Rs.4,660/- paid to the petitioner with interest at the rate of 8.5 percent per annum from the actual date of payment till 16-11-1995 against the pension arrears due to the petitioner from 15-11-1998. (iv) Direct the 2nd respondent to pay monthly pension to the petitioner regularly on monthly basis henceforth and (v) Award exemplary cost of this proceeding and grant such other reliefs that are prayed for from time to time and this Honourable Court may deem fit and proper in the interest of justice and circumstances of this case.” W.P(C) No. 34342 of 2004 3 3. On behalf of respondents 1 and 2, a statement has been filed. In the statement, what is contended is that contribution due from the petitioner was received in their office only till 31.7.1992 and that therefore, the claim of the petitioner that he was member of the scheme till 27.9.1993 is incorrect. It is stated that the provisions of the 1995 scheme applied only to those members whose contribution was received after 1.4.1993. 4. In the counter affidavit filed on behalf of respondents 3 and 4 it is stated that, since the petitioner retired on voluntary retirement and was relieved on 31.7.1992, and hence, he was not eligible to exercise option to join 1995 scheme. 5. In my view, the claim of the petitioner is a matter to be decided in terms of the provisions of the Employees Pension Scheme 1995 and the Employees Provident Fund Scheme 1952. Clause '6' of the 1995 scheme deals with the membership of the scheme. Clause 6 (c) provides that the employees of establishments to which Act applies, and who ceased to be a member of the 1971 scheme between 1st April 1993 and 15th November, 1995 and exercise option under paragraph-7 of the W.P(C) No. 34342 of 2004 4 scheme, are eligible to be members of the scheme. Clause 26A of the 1952 scheme provides for retention of membership. 26A (1) still provides that a member of the Fund shall continue to be a member until he withdraws the amount standing to his credit in the fund as provided under paragraph-69, which in turn provides the circumstances in which accumulations in the fund are payable to be a member. 6. Although, the petitioner retired from service with effect from 01.08.1992, he withdrew the benefit under paragraph-69 only on 27.9.1993. Consequently, in view of the provisions contained in clause 26A of the 1952 scheme, the petitioner retained his membership of the scheme till 27.9.1993. If that be so, he is an employee, who ceased to be a member of the 1971 scheme between 01.04.1993 and 15.11.1995, as provided in paragraph 6(c) of the 1995 scheme. 7. Paragraph 7 of the 1995 scheme provides for the option for joining the scheme. Clause 2 provides that those employees who are covered by paragraph-6 (c) referred to above shall have the option to join in the scheme from the date of exit from the employment. Similarly, paragraph-17 provides for the W.P(C) No. 34342 of 2004 5 payments, an employee has to make on exercise of option. In terms of paragraph 17(2) an employee covered by paragraph 7 (2) referred to above, should return the amount withdrawal benefit received together with interest at the rate of 8.5% from the date of payment of such withdrawal and the date of exercise of the option to receive monthly pension as per the provisions of the scheme. 8. From the facts of the case it is obvious that, in 1999 the petitioner had exercised his option which was returned along with Ext.P2 dated 14.10.1999. Having regard to the aforesaid provisions of the scheme and the other facts of this case, I am inclined to think the petitioner was entitled to have exercised his option and that his option was illegally returned by the respondents. Therefore, I dispose of this writ petition with the following directions:- That the petitioner will exercise a fresh option and on receipt thereof respondents 1 and 2 shall process the same in accordance with the provisions of the 1995 pension scheme. In so far as the obligation of the petitioner to return the withdrawn amount is concerned, as according to the petitioner he attained W.P(C) No. 34342 of 2004 6 the age of 58 on 15.11.1998 and if so, he is entitled to the benefit of pension with effect from that date, I direct that the pension amount due to the petitioner will be adjusted towards the amount withdrawn by the petitioner and the interest due thereon. If the amount so adjusted is insufficient, respondents 1 and 2 will be free to call upon the petitioner, who shall remit the amount and on such remittance, the benefit due to the petitioner will be disbursed to him. The petitioner will exercise option as above, within four weeks from today and within eight weeks thereafter the above will be processed. Adjustments will be made and thereafter benefit will be disbursed to the petitioner. The writ petition is disposed of as above. ANTONY DOMINIC, JUDGE dmb